PROSPECTUS SUPPLEMENT
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Filed Pursuant to Rule 424(b)(5)
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(To Prospectus Effective May 5, 2016)
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Registration No. 333-210782
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ENERGY FUELS INC.
Up to $20,000,000
Common Shares
Energy Fuels Inc. (the
Company
or
Energy
Fuels
) is hereby offering to sell common shares (
Common Shares
)
having an aggregate offering price of up to $20,000,000 under this prospectus
supplement (the
Prospectus Supplement
) to the accompanying prospectus
of the Company which was declared effective by the United States Securities and
Exchange Commission (the
SEC
) on May 5, 2016 (the
Prospectus
).
The Company has entered into a Controlled Equity Offering
SM
sales
agreement dated December 23, 2016 (the
Sales Agreement
) with Cantor
Fitzgerald & Co. (the
Agent
) relating to the sale of Common Shares.
In accordance with the terms of the Sales Agreement, the Company may offer and
sell Common Shares having an aggregate offering price of up to $20,000,000 (the
Offering
) from time to time, through the Agent.
The Common Shares of the Company are listed on the Toronto
Stock Exchange (the
TSX
) under the symbol EFR and on the NYSE MKT LLC
(
NYSE MKT
) under the symbol UUUU. On December 22, 2016, the last
trading day of the Common Shares prior to the date of this Prospectus
Supplement, the closing price of the Common Shares on the TSX was Cdn$2.28 and on
the NYSE MKT was $1.70.
Upon our delivery of a placement notice and subject to the
terms and conditions of the Sales Agreement, sales of Common Shares, if any,
under this Prospectus Supplement and the accompanying Prospectus are anticipated
to be made in transactions that are deemed to be an at the market offering as
defined in Rule 415(a)(4) promulgated under the Securities Act of 1933
(
Securities Act
). Subject to terms of the Sales Agreement, the Agent is
not required to sell any specific number or dollar amounts of securities but
will act as a sales agent using commercially reasonable efforts consistent with
its normal trading and sales practices, on mutually agreed terms between the
Agent and us. There is no arrangement for funds to be received in any escrow,
trust or similar arrangement.
The Company will pay the Agent compensation for its services in
acting as agent in the sale of Common Shares pursuant to the terms of the Sales
Agreement. The Company will pay the Agent compensation up to but not exceeding 3.0% of the gross proceeds
from sales of Common Shares made thereunder. In connection with the sale of
Common Shares on our behalf, the Agent will be deemed to be an underwriter
within the meaning of the Securities Act and the compensation of the Agent will
be deemed to be underwriting commissions or discounts.
_______________________________________________
No common shares will be sold on the TSX or on other trading
markets in Canada as at-the-market distributions.
AN INVESTMENT IN OUR COMMON SHARES INVOLVES A HIGH DEGREE OF
RISK AND MUST BE CONSIDERED SPECULATIVE DUE TO THE NATURE OF THE COMPANYS
BUSINESS AND THE PRESENT STAGE OF EXPLORATION AND DEVELOPMENT OF CERTAIN OF ITS
PROPERTIES. PROSPECTIVE INVESTORS SHOULD CAREFULLY CONSIDER THE RISK FACTORS
DESCRIBED IN THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS UNDER RISK FACTORS
AND CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS AND THE RISK FACTORS
DISCUSSED IN THE COMPANYS ANNUAL REPORT ON FORM 10-K FOR THE YEAR ENDED
DECEMBER 31, 2015 THAT IS INCORPORATED BY REFERENCE INTO THIS PROSPECTUS
SUPPLEMENT AND THE PROSPECTUS.
NEITHER THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION, NOR ANY STATE SECURITIES REGULATOR, HAS APPROVED OR DISAPPROVED THE
SECURITIES OFFERED HEREBY OR PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS SUPPLEMENT OR THE PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENCE
.
_______________________________________________
The date of this prospectus supplement is December 23, 2016.
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
BASE SHELF PROSPECTUS
ABOUT THIS PROSPECTUS
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1
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SUMMARY
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2
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RISK FACTORS
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5
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
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5
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CAUTIONARY NOTE TO UNITED STATES INVESTORS
CONCERNING DISCLOSURE OF MINERAL RESOURCES
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7
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DOCUMENTS INCORPORATED BY REFERENCE
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9
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USE OF PROCEEDS
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10
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DESCRIPTION OF COMMON SHARES
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10
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DESCRIPTION OF WARRANTS
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10
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DESCRIPTION OF RIGHTS
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12
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DESCRIPTION OF SUBSCRIPTION RECEIPTS
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13
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DESCRIPTION OF PREFERRED SHARES
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16
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DESCRIPTION OF DEBT SECURITIES
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16
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DESCRIPTION OF UNITS
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18
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PLAN OF DISTRIBUTION
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18
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TRANSFER AGENT AND REGISTRAR
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20
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LEGAL MATTERS
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20
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EXPERTS
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20
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WHERE YOU CAN FIND MORE INFORMATION
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21
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iii
ABOUT THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING
PROSPECTUS
This document is in two parts. The first part is the Prospectus
Supplement, including the documents incorporated by reference, which describes
the specific terms of this Offering. The second part, the Prospectus, including
the documents incorporated by reference therein, provides more general
information. References to this Prospectus may refer to both parts of this
document combined. You are urged to carefully read this Prospectus Supplement
and the Prospectus, and the documents incorporated herein and therein by
reference, before buying any of the Common Shares being offered under this
Prospectus Supplement. This Prospectus Supplement may add, update or change
information contained in the Prospectus. To the extent that any statement made
in this Prospectus Supplement is inconsistent with statements made in the
Prospectus or any documents incorporated by reference therein, the statements
made in this Prospectus Supplement will be deemed to modify or supersede those
made in the Prospectus and such documents incorporated by reference therein.
Only the information contained or incorporated by reference in
this Prospectus Supplement and the Prospectus should be relied upon. The Company
has not authorized any other person to provide different information. If anyone
provides different or inconsistent information, it should not be relied upon.
The Common Shares offered hereunder may not be offered or sold in any
jurisdiction where the offer or sale is not permitted. It should be assumed that
the information appearing in this Prospectus Supplement and the Prospectus and
the documents incorporated by reference herein are accurate only as of their
respective dates. The Companys business, financial condition, results of
operations and prospects may have changed since those dates.
This Prospectus Supplement does not constitute, and may not be
used in connection with, an offer to sell, or a solicitation of an offer to buy,
any securities offered by this Prospectus Supplement by any person in any
jurisdiction in which it is unlawful for such person to make such an offer or
solicitation.
In this Prospectus Supplement, unless stated otherwise, the
Company, Energy Fuels, we, us and our refer to Energy Fuels Inc. and
its subsidiaries.
S-1
CAUTIONARY NOTE TO U.S. INVESTORS CONCERNING ESTIMATES OF
MINERAL RESERVES AND MINERAL RESOURCES
Unless otherwise indicated, all reserve and resource estimates
included in this Prospectus Supplement and the Prospectus, and in the documents
incorporated by reference herein and therein, have been, and will be, prepared
in accordance with Canadian National Instrument 43-101 -
Standards of
Disclosure for Mineral Projects
(
NI 43-101
) and the Canadian
Institute of Mining, Metallurgy and Petroleum classification system. NI 43-101
is a rule developed by the Canadian Securities Administrators (the
CSA
)
which establishes standards for all public disclosure an issuer makes of
scientific and technical information concerning mineral projects.
Canadian standards, including NI 43-101, differ significantly
from the requirements of the SEC and reserve and resource information contained
or incorporated by reference in this Prospectus Supplement and the Prospectus,
and in the documents incorporated by reference herein and therein, may not be
comparable to similar information disclosed by companies reporting under United
States standards. In particular, and without limiting the generality of the
foregoing, the term resource does not equate to the term reserve under SEC
Industry Guide 7. Under United States standards, mineralization may not be
classified as a reserve unless the determination has been made that the
mineralization could be economically and legally produced or extracted at the
time the reserve determination is made. The SECs disclosure standards normally
do not permit the inclusion of information concerning measured mineral
resources, indicated mineral resources or inferred mineral resources or
other descriptions of the amount of mineralization in mineral deposits that do
not constitute reserves by United States standards in documents filed with the
SEC. United States investors should also understand that inferred mineral
resources have a great amount of uncertainty as to their existence and as to
their economic and legal feasibility. It cannot be assumed that all or any part
of an inferred mineral resource will ever be upgraded to a higher category.
Under Canadian securities laws or standards, estimated inferred mineral
resources may not form the basis of feasibility or prefeasibility studies.
Investors are cautioned not to assume that all or any part of an inferred
mineral resource exists or is economically or legally mineable. Disclosure of
contained pounds in a resource estimate is permitted disclosure under Canadian
regulations; however, the SEC normally only permits issuers to report
mineralization that does not constitute reserves by SEC standards as in place
tonnage and grade without reference to unit measures. The requirements of NI
43-101 for identification of reserves are also not the same as those of the
SEC, and reserves reported by the Company in compliance with NI 43-101 may not
qualify as reserves under SEC standards. Accordingly, information concerning
mineral deposits set forth herein may not be comparable with information made
public by companies that report in accordance with United States standards.
The Company does not have any mineral reserves within the
meaning of SEC Industry Guide 7.
S-2
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus Supplement and the Prospectus, including the
documents incorporated herein and therein by reference, contain forward-looking
information and forward-looking statements within the meaning of applicable
Canadian securities laws and the United States Private Securities Litigation
Reform Act of 1995. Those statements appear in a number of places in this
Prospectus Supplement and the Prospectus and in the documents incorporated
herein and therein by reference and include, but are not limited to, statements
and information regarding the Companys current intent, belief or expectations
primarily with respect to: the Companys business objectives, plans and
expectations for FY-2016 and FY-2017; exploration and development plans and
expenditures; estimation of mineral resources and mineral reserves; mineral
grades; Energy Fuels expectations regarding additions to its mineral resources
and mineral reserves through acquisitions and development; expectations
regarding the integration of Uranerz Energy Corporation (
Uranerz
) and
EFR Alta Mesa LLC (
EFR
Alta Mesa
) (previously named Mesteña
Uranium, LLC); success of the Company's permitting efforts, including receipt of
regulatory approvals, permits and licenses and treatment under governmental
regulatory regimes and the expected timeframes for receipt of such approvals,
permits, licenses and treatments; possible impacts of regulatory actions;
capital expenditures; expansion plans; success of the Company's mining,
recovery, processing and/or milling operations; availability of equipment and
supplies; availability of alternate feed materials for processing; the Companys
processing and recovery technologies; future mineral extraction and recovery
costs, including costs of labor, energy, materials and supplies; future
effective tax rates; costs and risks associated with transportation of the
Companys ores, feed materials, intermediate and final products, waste materials
and chemicals and reagents used for processing and recovery; costs and risks
associated with reliance on third parties for any of the Companys mining,
processing, recovery or waste disposal operations; future benefits costs; future
royalties payable; the outcome and possible impacts of disputes and legal
proceedings in which the Company is involved; the timing and amount of estimated
future mineral extraction and recovery, including Energy Fuels expectations
regarding expected price levels required to support mineral extraction and
recovery and the Companys ability to increase mineral extraction and recovery
as market conditions warrant; sales volumes and future uranium and vanadium
prices and treatment charges; future trends in the Companys industry; global
economic growth and industrial demand; global growth in and/or attitudes towards
nuclear energy; changes in global uranium and vanadium and concentrate
inventories; expected market fundamentals, including the supply and demand for
uranium and vanadium; the Companys and the industrys expectations relating to
future prices of uranium and vanadium; currency exchange rates; environmental
and climate change risks; regulatory compliance costs, reclamation costs,
including unanticipated reclamation expenses and bonding requirements;
collateral requirements for surety bonds; title disputes or claims; the adequacy
of insurance coverage; and legal proceedings and the potential outcomes
therefrom. In certain cases, forward looking statements can be identified by the
use of words such as plans, expects or does not expect, is expected, is
likely, budget, scheduled, estimates, forecasts, intends,
anticipates or does not anticipate, continue, or believes, and similar
expressions or variations of such words and phrases or statements that certain
actions, events or results may, could, would, might or will be taken,
occur or be achieved.
Forward-looking statements are based on the opinions and
estimates of management as of the date such statements are made. Energy Fuels
believes that the expectations reflected in this forward-looking information are reasonable but no assurance can
be given that these expectations will prove to be correct, and such
forward-looking information included in this Prospectus should not be unduly
relied upon.
S-3
Readers are cautioned that it would be unreasonable to rely on
any such forward looking statements and information as creating any legal
rights, and that the statements and information are not guarantees and may
involve known and unknown risks and uncertainties, and that actual results are
likely to differ (and may differ materially) and objectives and strategies may
differ or change from those expressed or implied in the forward looking
statements or information as a result of various factors. Such risks and
uncertainties include risks generally encountered in the development and
operation of mineral properties and processing and recover facilities such as:
risks that the anticipated benefits of the acquisition of EFR Alta Mesa and the
acquisition of Sumitomo Corporations 40% interest in the Companys Roca Honda
Project (the
Roca Honda Acquisition
) are not realized; risks associated
with mineral and resource estimates, including the risk of errors in assumptions
or methodologies; risks associated with estimating production, forecasting
future price levels necessary to support production, and the Companys ability
to increase production in response to any increases in commodity prices or other
market conditions; uncertainties and liabilities inherent in mining and recovery
operations; geological, technical and processing problems, including
unanticipated metallurgical difficulties, ground control problems, process
upsets and equipment malfunctions; transportation risks; risks associated with
labour disturbances and unavailability of skilled labour; risks associated with
the availability and/or fluctuations in the costs of raw materials and
consumables used in the Company's production processes; risks and costs
associated with environmental compliance and permitting, including those created
by changes in environmental legislation and regulation and delays in obtaining
permits and licenses that could impact expected production levels or increases
in expected production levels; risks associated with environmental litigation;
risks associated with climate change, including laws, regulations, or
international accords regarding climate change, the effect of regulations on
business trends, and the physical effects of climate change; actions taken by
regulatory authorities with respect to mining, recovery and processing
activities, including changes to regulatory programs and requirements; risks
associated with the Companys dependence on third parties in the provision of
transportation and other critical services; title risks; risks associated with
ability of the Company to obtain, extend or renew land tenure, including mineral
leases and surface use agreements, on favourable terms or at all; the adequacy
of insurance coverage; uncertainty as to reclamation and decommissioning
liabilities; the ability of the Companys bonding companies to require increases
in the collateral required to secure reclamation obligations; the potential for,
and outcome of, litigation and other legal proceedings, including potential
injunctions pending the outcome of such litigation and proceedings; the ability
of Energy Fuels to meet its obligations to its creditors; risks associated with
paying off indebtedness on its maturity; risks associated with the Companys
relationships with its business and joint venture partners; failure to obtain
industry partner, government and other third party consents and approvals, when
required; competition for, among other things, capital, acquisitions of mineral
reserves, undeveloped lands and skilled personnel; incorrect assessments of the
value of acquisitions; risks posed by fluctuations in exchange rates and
interest rates, as well as general economic conditions; risks inherent in the
Companys and industrys forecasts or predictions of future uranium and vanadium
price levels; fluctuations in the market prices of uranium and vanadium, which
are cyclical and subject to substantial price fluctuations; failure to obtain
suitable uranium sales terms, including spot and term sales contracts; the risks
associated with asset impairment as a result of market conditions; risks
associated with lack of access to markets and the ability to access capital; the
market price of Energy Fuels securities; public resistance to nuclear energy or
uranium mining or recovery; uranium industry competition and international trade
restrictions; risks related to higher than expected costs related to our Nichols
Ranch Project and Canyon Mine; risks that commodity price levels will not be
sufficient to support production at the Companys mines and facilities; risks
related to securities regulations; risks related to stock price and volume
volatility; risks related to our ability to maintain our listing on the NYSE MKT
and/or TSX; risks related to our ability to maintain our inclusion in various
stock indices; risks related to dilution of currently outstanding shares; risks
related to our lack of dividends; risks related to recent market events; risks
related to our issuance of additional Common Shares or other securities; risks
related to acquisition and integration issues; risks related to defects in title
to our mineral properties; risks related to outstanding debt; risks related to
the Companys securities and the other factors discussed under the Risk
Factors section in this Prospectus Supplement, the Prospectus and the Companys
Form 10-K for the year ended December 31, 2015. Actual results and developments
are likely to differ, and may differ materially, from those expressed or implied
by the forward looking statements contained in this Prospectus Supplement and
the Prospectus.
S-4
Such statements are based on a number of assumptions which may
prove to be incorrect, including, but not limited to, the following assumptions:
that there is no material deterioration in general business and economic
conditions; that there is no unanticipated fluctuation of interest rates and
foreign exchange rates; that the supply and demand for, deliveries of, and the
level and volatility of prices of uranium, vanadium and the Companys other
primary metals and minerals develop as expected; that uranium and vanadium
prices required to reach, sustain or increase expected or forecasted production
levels are realized as expected; that the Company receives regulatory and
governmental approvals for the Companys development projects and other
operations on a timely basis; that the Company is able to operate its mineral
properties and processing facilities as expected; that existing licenses and
permits are renewed as required; that the Company is able to obtain financing
for the Companys development projects on reasonable terms; that the Company is
able to procure mining equipment and operating supplies in sufficient quantities
and on a timely basis; that engineering and construction timetables and capital
costs for the Companys development and expansion projects and restarting
projects on standby, are not incorrectly estimated or affected by unforeseen
circumstances; that costs of closure of various operations are accurately
estimated; that there are no unanticipated changes in collateral requirements
for surety bonds; that there are no unanticipated changes to market competition;
that the Companys reserve and resource estimates are within reasonable bounds
of accuracy (including with respect to size, grade and recoverability) and that
the geological, operational and price assumptions on which these are based are
reasonable; that environmental and other administrative and legal proceedings or
disputes are satisfactorily resolved; that there are no significant changes to
regulatory programs and requirements that would materially increase regulatory
compliance costs or bonding requirements; and that the Company maintains ongoing
relations with its employees and with its business and joint venture
partners.
All written and oral forward looking statements or information
attributable to the Company or persons acting on the Companys behalf are
expressly qualified in their entirety by the foregoing cautionary
statements.
S-5
Forward looking statements speak only as of the date the
statements are made. You should not put undue reliance on any forward looking
statements.
The Company cautions that the foregoing list of assumptions,
risks and uncertainties is not exhaustive. Additional information on these and
other factors which could affect operations or financial results are included
under the
Risk Factors
section in this Prospectus
Supplement, the Prospectus and in the Companys Annual Report on Form 10-K for
the year ended December 31, 2015. The forward-looking statements and
forward-looking information contained in this Prospectus Supplement and the
Prospectus and the documents incorporated by reference herein and therein are
expressly qualified by this cautionary statement. The Company does not undertake
any obligation to publicly update or revise any forward looking statements to
reflect actual results, changes in assumptions or changes in other factors
affecting any forward looking statements or information except as expressly
required by applicable securities laws. If the Company does update one or more
forward looking statements, no inference should be drawn that the Company will
make additional updates with respect to those or other forward looking
statements.
Statements relating to mineral reserves or mineral
resources are deemed to be forward-looking information, as they involve the
implied assessment, based on certain estimates and assumptions, that the mineral
reserves and mineral resources described can be profitably produced in the
future.
S-6
DOCUMENTS INCORPORATED BY REFERENCE
Information has been incorporated by reference in this
Prospectus Supplement from documents filed with the SEC and is therefore deemed
to be incorporated by reference into the Prospectus for purposes of this
Offering
. Copies of documents incorporated herein by reference may be
obtained on request without charge from the Chief Financial Officer of the
Company, at 225 Union Blvd, Suite 600, Lakewood, CO 80228 USA, telephone (303)
389-4143. These documents are also available on SEDAR at www.sedar.com under the
Companys profile. The filings of the Company through SEDAR and the SECs
Electronic Data Gathering, Analysis and Retrieval system, which is commonly
known by the acronym EDGAR, and may be accessed at
www.sec.gov
, are not
incorporated by reference in this Prospectus except as specifically set out
herein.
The following documents which have been filed by us with the
SEC, are also specifically incorporated by reference into, and form an integral
part of the Prospectus, as supplemented by this Prospectus Supplement
(excluding, unless otherwise provided therein or herein, information furnished
pursuant to Item 2.02 and Item 7.01 of any Current Report on Form 8-K):
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(a)
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The Companys Annual Report on Form 10-K for the year
ended December 31, 2015, filed with the SEC on March 15, 2016;
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(b)
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The Companys Quarterly Report on Form 10-Q, for each of
the quarters ended March 31, 2016, June 30, 2016 and September 30, 2016,
filed with the SEC on May 6, 2016, August 5, 2016 and November 3, 2016,
respectively, and the Companys Form 10-Q/A filed on June 2,
2016;
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(c)
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The Companys Proxy Statement on Schedule 14A, filed with
the SEC on March 24, 2016;
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(d)
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The Companys Current Reports on Form 8-K as filed with
the SEC on January 26, 2016, February 1, 2016, March 8, 2016, March 10,
2016, March 14, 2016, and April 20, 2016, May 23, 2016, June 2, 2016, June
21, 2016, August 4, 2016, August 9, 2016, September 7, 2016, September 12,
2016, September 14, 2016, September 16, 2016 and September 20,
2016;
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(e)
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The description of the Common Shares contained in our
Registration Statement on Form 40-F, as filed with the SEC on November 11,
2013, including any amendment or report filed for the purpose of amending
such description; and
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(f)
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all other documents filed by us with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the U.S. Exchange Act (excluding,
unless otherwise provided therein or herein, information furnished
pursuant to Item 2.02 and Item 7.01 on any Current Report on Form 8-K),
after the date of this Prospectus Supplement but before the end of the
offering of securities made by this Prospectus Supplement and the
accompanying Prospectus.
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S-7
Any statement contained herein or in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for the purposes of this Prospectus Supplement and the Prospectus
to the extent that a statement contained herein, or in any other subsequently
filed document which also is incorporated or is deemed to be incorporated by
reference herein, modifies or supersedes such statement. The modifying or
superseding statement need not state that it has modified or superseded a prior
statement or include any other information set forth in the document which it
modifies or supersedes. The making of a modifying or superseding statement will
not be deemed an admission for any purposes that the modified or superseded
statement, when made, constituted a misrepresentation, an untrue statement of a
material fact or an omission to state a material fact that is required to be
stated or that is necessary to make a statement not misleading in light of the
circumstances in which it was made. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus Supplement and the Prospectus.
S-8
RISK FACTORS
An investment in the Common Shares is subject to a number of
risks. A prospective purchaser of the Common Shares should carefully consider
the information and risks faced by the Company described in this Prospectus
Supplement, the Prospectus and the documents incorporated herein and therein by
reference, including without limitation the risk factors set out under the
headings Risk Factors in the Companys Annual Report on Form 10-K for the year
ended December 31, 2015.
The operations of the Company are highly speculative due to the
high-risk nature of its business, which includes the acquisition, financing,
exploration, permitting, development and mining of, or recovery of product from,
mineral properties, the recovery, milling and processing of minerals and other
feed materials and the marketing of the resulting products. The risks and
uncertainties incorporated by reference herein are not the only ones facing the
Company. Additional risks and uncertainties not currently known to the Company,
or that the Company currently deems immaterial, may also impair the Companys
operations. If any of the risks actually occur, the Companys business,
financial condition and operating results could be adversely affected. As a
result, the trading price of the Common Shares could decline and investors could
lose part or all of their investment.
Risks Related to This Offering and our Securities
Management will have broad discretion as to the use of
the proceeds from this Offering and may not use the proceeds
effectively.
Because we have not designated the amount of net proceeds from
this Offering to be used for any particular purpose, our management will have
broad discretion as to the application of the net proceeds from this Offering
and could use them for purposes other than those contemplated at the time of the
Offering. Our management may use the net proceeds for corporate purposes that
may not improve our financial condition or market value.
You may experience dilution as a result of the
Offering.
Giving effect to the issuance of Common Shares in this
Offering, the receipt of the expected net proceeds and the use of those
proceeds, this Offering may have a dilutive effect on our expected net income
available to our shareholders per share and funds from operations per share. The
actual amount of dilution cannot be determined at this time and will be based on
a number of factors.
S-9
You may experience future dilution as a result of future
equity offerings.
We are not restricted from issuing additional securities in the
future, including Common Shares, securities that are convertible into or
exchangeable for, or that represent the right to receive, Common Shares or
substantially similar securities. To the extent that we raise additional funds
through the sale of equity or convertible debt securities, the issuance of such
securities will result in dilution to our shareholders. We may sell Common
Shares or other securities in any other offering at a price per share that is
less than the price per share paid by investors in this Offering, and investors
purchasing Common Shares or other securities in the future could have rights superior to existing shareholders. The price per share at which
we sell additional Common Shares, or securities convertible or exchangeable into
Common Shares, in future transactions may be higher or lower than the price per
share paid by investors in this Offering.
S-10
THE COMPANY
Energy Fuels Inc. was incorporated on June 24, 1987 in the
Province of Alberta under the name 368408 Alberta Inc. In October 1987, 368408
Alberta Inc. changed its name to Trevco Oil & Gas Ltd. In May 1990, Trevco
Oil & Gas Ltd. changed its name to Trev Corp. In August 1994, Trev Corp.
changed its name to Orogrande Resources Inc. In April 2001 Orogrande Resources
Inc. changed its name to Volcanic Metals Exploration Inc. On September 2,
2005, the Company was continued under the
Business Corporations Act
(Ontario). On March 26, 2006, Volcanic Metals Exploration Inc. acquired 100% of
the outstanding shares of Energy Fuels Resources Corporation. On May 26, 2006,
Volcanic Metals Exploration Inc. changed its name to Energy Fuels Inc.
Energy Fuels is engaged in conventional extraction and in situ
recovery (
ISR
) of uranium, along with the exploration, permitting, and
evaluation of uranium properties in the United States. Energy Fuels owns the
Nichols Ranch uranium recovery facility in Wyoming (the
Nichols Ranch
Project
), which is one of the newest ISR uranium recovery facilities
operating in the United States, and the Alta Mesa Project in Texas (
Alta
Mesa
), which is an ISR production center currently on care and maintenance.
In addition, Energy Fuels owns the White Mesa Mill in Utah (the
White Mesa
Mill
), which is the only conventional uranium recovery facility operating
in the United States. The White Mesa Mill can also recover vanadium as a
co-product of mineralized material produced from certain of its projects in
Colorado and Utah. The Company also owns uranium and uranium/vanadium properties
and projects in various stages of exploration, permitting, and evaluation, as
well as fully-permitted uranium and uranium/vanadium projects on standby. In
addition, Energy Fuels recovers uranium from other uranium-bearing materials not
derived from conventional material, referred to as alternate feed materials,
at its White Mesa Mill.
For a detailed description of the business of Energy Fuels
please refer to
General Development of the Business
and
Energy
Fuels Business
in the Companys Annual Report on Form 10-K for the year
ended December 31, 2015.
The Companys registered and head office is located at 82
Richmond St. East; Suite 308 Toronto, ON M5C 1P1. The Companys principal place
of business and the head office of the Companys U.S. subsidiaries is located at
225 Union Blvd., Suite 600, Lakewood, Colorado, 80228 USA.
S-11
DILUTION
As of September 30, 2016, our net tangible book value was
approximately $137.33 million, or $2.07 per share. Net tangible book value is
total assets minus the sum of liabilities, intangible assets and non-controlling
interests. Net tangible
book value per share is net tangible book value divided by the total number of
our Common Shares outstanding as of September 30, 2016.
Dilution in net tangible book value per share represents the
difference between the amount per share paid by purchasers of our Common Shares
in this Offering and the net tangible book value per share of our Common Shares
immediately after completion of this Offering. Assuming that an aggregate of
11,764,706
Common Shares are sold at a price of $1.70 per share, which was the last reported
sale price of our Common Shares on the NYSE MKT on December 22, 2016, for
aggregate proceeds of $20.00 million in this Offering, and after deducting the
commissions estimated Offering expenses payable by us, our as adjusted net
tangible book value as of September 30, 2016 would have been approximately $156.53
million, or $2.01 per share. This represents an immediate dilution in net tangible
book value of $0.06 per share to existing shareholders and immediate increase in
net tangible book value of $0.31 per share to investors purchasing our Common
Shares in this Offering. The following table illustrates this dilution on a per
share basis:
Assumed public Offering price
per share
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$
|
1.70
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|
Net tangible book value
per share as of September 30, 2016
|
$
|
2.07
|
|
Dilution
in net tangible book value per share attributable to this Offering
|
$
|
(0.06)
|
|
As adjusted net tangible book value per share
as of September 30, 2016 after giving effect to this Offering
|
$
|
2.01
|
|
Increase per share to
investors purchasing our Common Shares in this Offering
|
$
|
0.31
|
|
The table above assumes for illustrative purposes that an
aggregate of 11,764,706 Common Shares are sold during the term of the Sales Agreement at
an Offering price of $1.70 per share, which was the last reported sale price of our
Common Shares on the NYSE MKT on December 22, 2016, for aggregate gross proceeds
of $20.00 million. The Common Shares subject to the Sales Agreement are being sold
from time to time at various prices. An increase of $0.10 per share in the price at
which the shares are sold from the assumed Offering price of $1.70 per share shown
in the table above, assuming all of our Common Shares in the aggregate amount of
$20.00 million during the term of the Sales Agreement is sold at that price, would
increase our adjusted net tangible book value per share after the Offering to $2.02
per share and would increase the net tangible book value per share
to new investors in this Offering to $0.22 per share, after deducting commissions
and estimated aggregate Offering expenses payable by us. A decrease of $0.10 per
share in the price at which the shares are sold from the assumed Offering price
of $1.70 per share shown in the table above, assuming all of our Common Shares in
the aggregate amount of $20.00 million during the term of the Sales Agreement is
sold at that price, would decrease our adjusted net tangible book value per
share after the Offering to $1.99 per share and would increase the net
tangible book value per share to new investors in this Offering to $0.39 per share,
after deducting commissions and estimated Offering expenses payable by us. This
information is supplied for illustrative purposes only and may differ based on
the actual Offering price and the actual number of shares offered.
S-12
The discussion and table above are based on 66,205,153 Common
Shares outstanding as of September 30, 2016, and excludes the following, in each
case as of such date:
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|
20,920 Common Shares held in treasury;
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|
|
2,184,978 Common Shares issuable upon the
exercise of outstanding stock options having a weighted-average exercise
price of $5.81 per share;
|
|
|
1,330,469 Common Shares issuable upon vesting
of outstanding restricted stock units;
|
|
|
8,716,348 Common Shares issuable upon the
exercise of warrants having a weighted- average exercise price of $3.76
per share; and
|
|
|
4,149,411 Common Shares reserved for future
issuance under our 2015 Omnibus Equity Compensation Plan as of December
22, 2016.
|
1
Options and Warrants which
are granted and are reported in Canadian dollars were translated into U.S. Dollars
at the September 30, 2016 foreign exchange rate of 1 Cdn$ = $0.7624 U.S. Dollar.
To the extent that any of these shares are issued upon exercise
of outstanding options, vesting of restricted stock units, exercise of warrants
or otherwise, investors purchasing our Common Shares in this Offering may
experience further dilution. In addition, we may choose to raise additional
capital due to market conditions or strategic considerations even if we believe
we have sufficient funds for our current or future operating plans. To the
extent that we raise additional capital through the sale of equity or
convertible debt securities, the issuance of these securities could result in
further dilution to our shareholders.
S-13
USE OF PROCEEDS
The net proceeds from the Offering are not determinable in
light of the nature of the distribution. The net proceeds of any given
distribution of Common Shares through the Agent in an at the market offering
will represent the gross proceeds after deducting the applicable compensation
payable to the Agent under the Sales Agreement and the expenses of the
distribution.
The Company intends to use the net proceeds, if any, of the
Offering to provide the Company with additional financial flexibility and
enhanced options with respect to any or all of the following: (i) to continue to
finance the evaluation of the high-grade uranium and copper mineralization and
the previously announced shaft-sinking at the Companys Canyon mine project in
Arizona; (ii) to fund wellfield construction at the Companys Nichols Ranch ISR
Project in Wyoming, as market conditions warrant; (iii) to continue permitting
of the Companys projects, including Roca Honda and Jane Dough; (iv) to repay
principal on outstanding indebtedness; and/or (v) for general corporate needs
and working capital requirements. However, management of Energy Fuels will have
discretion with respect to the actual use of the net proceeds of the Offering
and there may be circumstances where, for sound business reasons, a reallocation
of the net proceeds is necessary. See Risk Factors.
S-14
PLAN OF DISTRIBUTION
The Company has entered into the Sales Agreement with the Agent
under which it may issue and sell from time to time up to $20,000,000 of Common
Shares through the Agent. The Sales Agreement will be filed as an exhibit to a
Current Report on Form 8-K and incorporated by reference into this prospectus
supplement and the accompanying prospectus.
Sales of Common Shares, if any, will be made in transactions
that are deemed to be an at the market offering as defined in Rule 415(a)(4)
promulgated under the Securities Act. No Common Shares will be sold on the TSX
or on other trading markets in Canada. Subject to the terms and conditions of
the Sales Agreement and upon instructions from the Company, the Agent will use
its commercially reasonable efforts, consistent with its customary trading and
sales practices and applicable laws, to sell the Common Shares in accordance
with the parameters specified by the Company and as set out in the Sales
Agreement. The Common Shares will be distributed at market prices prevailing at
the time of the sale. As a result, prices may vary as between purchasers and
during the period of distribution.
The Company will instruct the Agent as to the number of Common
Shares to be sold by the Agent from time to time by sending the Agent a notice
(a
Placement Notice
) that requests that the Agent sell up to a
specified dollar amount or a specified number of Common Shares and specifies any
parameters in accordance with which the Company requires that the Common Shares
be sold. The parameters set forth in a Placement Notice may not conflict with
the provisions of the Sales Agreement. The Company or the Agent may suspend the
offering of Common Shares upon proper notice and subject to other conditions set
forth in the Sales Agreement.
The Company will pay the Agent for its services in acting as
agent in the sale of Common Shares, pursuant to the terms of the Sales
Agreement, compensation up to but not exceeding 3.0% of the gross proceeds from
sales of Common Shares made thereunder. The Agent will be the only person or
company paid an underwriting fee or commission in connection with the Offering.
The Company has also agreed to reimburse the Agent for certain specified
expenses, including the fees and disbursements of its legal counsel in an amount
not to exceed $50,000. The Company estimates that the total expenses that it
will incur for the Offering (including fees payable to stock exchanges,
securities regulatory authorities, its counsel and its auditors, but excluding
compensation payable to the Agent under the terms of the Sales Agreement) will
be approximately $187,000. Settlement for sales of Common Shares will occur on
the third business day following the date on which any sales are made, or on
such other date as is current industry practice for regular-way trading, in
return for payment of the net proceeds to the Company. Sales of Common Shares as
contemplated in this Prospectus Supplement will be settled through the
facilities of The Depository Trust Company or by such other means as the Company
and the Agent may agree upon. There is no arrangement for funds to be received
in an escrow, trust or similar arrangement.
In connection with the sale of the Common Shares on behalf of
the Company, the Agent will be deemed an underwriter as defined in applicable
securities legislation under the Securities Act, and the compensation of the
Agent will be deemed to be underwriting commissions or discounts.
S-15
The Company has agreed to provide indemnification and
contribution to the Agent against, among other things, certain civil
liabilities, including liabilities under the Securities Act.
The offering of Common Shares pursuant to the Sales Agreement
will terminate upon the earlier of: (1) the sale of all Common Shares subject to
the Sales Agreement by the Agent or (2) the termination of the Sales Agreement
in accordance with its terms. The Agent may terminate the Sales Agreement under
the circumstances specified in the Sales Agreement. Each of the Company and the
Agent may also terminate the Sales Agreement upon giving the other party ten
(10) days notice.
The Agent and its affiliates may in the future provide various
investment banking, commercial banking and other financial services for us and
our affiliates, for which services they may in the future receive customary
fees. To the extent required by Regulation M under the Exchange Act, the Agent
will not engage in any market making activities involving our Common Shares
while the Offering is ongoing under this Prospectus Supplement.
This Prospectus Supplement and the accompanying Prospectus in
electronic format may be made available on a website maintained by the Agent,
and the Agent may distribute this Prospectus Supplement and the accompanying
Prospectus electronically.
S-16
CERTAIN UNITED STATES FEDERAL INCOME TAX
CONSIDERATIONS
The following is a general summary of certain material U.S.
federal income tax considerations applicable to a U.S. Holder (as defined below)
as a result of the acquisition, ownership, and disposition of Common Shares
acquired pursuant to this Prospectus Supplement.
This summary is for general information purposes only and does
not purport to be a complete analysis or listing of all potential U.S. federal
income tax considerations that may apply to a U.S. Holder as a result of the
acquisition, ownership, and disposition of Common Shares. In addition, this
summary does not take into account the individual facts and circumstances of any
particular U.S. Holder that may affect the U.S. federal income tax consequences
to such U.S. Holder, including, without limitation, specific tax consequences to
a U.S. Holder under an applicable income tax treaty. Accordingly, this summary
is not intended to be, and should not be construed as, legal or U.S. federal
income tax advice with respect to any U.S. Holder. This summary does not address
the U.S. federal alternative minimum, U.S. federal estate and gift, U.S. state
and local, and non-U.S. tax consequences to U.S. Holders of the acquisition,
ownership, and disposition of Common Shares. In addition, except as specifically
set forth below, this summary does not discuss applicable tax reporting
requirements. Each prospective U.S. Holder should consult its own tax advisor
regarding the U.S. federal, U.S. federal alternative minimum, U.S. federal
estate and gift, U.S. state and local, and non-U.S. tax consequences relating to
the acquisition, ownership, and disposition of Common Shares.
No legal opinion from U.S. legal counsel or ruling from the
Internal Revenue Service (the
IRS
) has been requested, or will be
obtained, regarding the U.S. federal income tax consequences of the acquisition,
ownership, and disposition of Common Shares. This summary is not binding on the
IRS, and the IRS is not precluded from taking a position that is different from,
and contrary to, the positions taken in this summary. In addition, because the
authorities on which this summary are based are subject to various
interpretations, the IRS and the U.S. courts could disagree with one or more of
the conclusions described in this summary.
Scope of this Summary
Authorities
This summary is based on the Internal Revenue Code of 1986, as
amended (the
Code
), Treasury Regulations (whether final, temporary, or
proposed), published rulings of the IRS, published administrative positions of
the IRS, the Convention Between Canada and the United States of America with
Respect to Taxes on Income and on Capital, signed September 26, 1980, as amended
(the
Canada-U.S. Tax Convention
), and U.S. court decisions that are
applicable, and, in each case, as in effect and available, as of the date of
this document. Any of the authorities on which this summary is based could be
changed in a material and adverse manner at any time, and any such change could
be applied on a retroactive or prospective basis which could affect the U.S.
federal income tax considerations described in this summary. This summary does
not discuss the potential effects, whether adverse or beneficial, of any
proposed legislation.
S-17
U.S. Holders
For purposes of this summary, the term "
U.S. Holder
"
means a beneficial owner of Common Shares acquired pursuant to this Prospectus
Supplement that is for U.S. federal income tax purposes:
|
|
an individual who is a citizen or resident of the United
States;
|
|
|
|
|
|
a corporation (or other entity treated as a corporation
for U.S. federal income tax purposes) organized under the laws of the
United States, any state thereof or the District of Columbia;
|
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|
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|
an estate whose income is subject to U.S. federal income
taxation regardless of its source; or
|
|
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|
a trust that (1) is subject to the primary supervision of
a court within the United States and the control of one or more U.S.
persons for all substantial decisions or (2) has a valid election in
effect under applicable Treasury Regulations to be treated as a U.S.
person.
|
U.S. Holders Subject to Special U.S. Federal Income Tax
Rules Not Addressed
This summary does not address the U.S. federal income tax
considerations applicable to U.S. Holders that are subject to special provisions
under the Code, including, but not limited to, U.S. Holders that: (a) are
tax-exempt organizations, qualified retirement plans, individual retirement
accounts, or other tax-deferred accounts; (b) are financial institutions,
underwriters, insurance companies, real estate investment trusts, or regulated
investment companies; (c) are broker-dealers, dealers, or traders in securities
or currencies that elect to apply a mark-to-market accounting method; (d) have a
functional currency other than the U.S. dollar; (e) own Common Shares as part
of a straddle, hedging transaction, conversion transaction, constructive sale,
or other arrangement involving more than one position; (f) acquire Common Shares
in connection with the exercise of employee stock options or otherwise as
compensation for services; (g) hold Common Shares other than as a capital asset
within the meaning of Section 1221 of the Code (generally, property held for
investment purposes); or (h) own, have owned or will own (directly, indirectly,
or by attribution) 10% or more of the total combined voting power of the
outstanding shares of the Company. This summary also does not address the U.S.
federal income tax considerations applicable to U.S. Holders who are: (a) U.S.
expatriates or former long-term residents of the U.S.; (b) persons that have
been, are, or will be a resident or deemed to be a resident in Canada for
purposes of the Income Tax Act (Canada) (the Tax Act); (c) persons that use or
hold, will use or hold, or that are or will be deemed to use or hold Common
Shares in connection with carrying on a business in Canada; (d) persons whose
Common Shares constitute taxable Canadian property under the Tax Act; or (e)
persons that have a permanent establishment in Canada for the purposes of the
Canada-U.S. Tax Convention. U.S. Holders that are subject to special provisions
under the Code, including, but not limited to, U.S. Holders described
immediately above, should consult their own tax advisor regarding the U.S.
federal, U.S. federal alternative minimum, U.S. federal estate and gift, U.S.
state and local, and non-U.S. tax consequences relating to the acquisition,
ownership and disposition of Common Shares.
S-18
If an entity or arrangement that is classified as a partnership
(or other pass-through entity) for U.S. federal income tax purposes holds
Common Shares, the U.S. federal income tax consequences to such entity and the
partners (or other owners) of such entity generally will depend on the
activities of the entity and the status of such partners (or owners). This
summary does not address the tax consequences to any such partner (or owner).
Partners (or other owners) of entities or arrangements that are classified as
partnerships or as pass-through entities for U.S. federal income tax purposes
should consult their own tax advisors regarding the U.S. federal income tax
consequences arising from and relating to the acquisition, ownership, and
disposition of Common Shares.
Ownership and Disposition of Common Shares
The following discussion is subject to the rules described
below under the heading Passive Foreign Investment Company Rules.
Taxation of Distributions
A U.S. Holder that receives a distribution, including a
constructive distribution, with respect to a Common Share will be required to
include the amount of such distribution in gross income as a dividend (without
reduction for any foreign income tax withheld from such distribution) to the
extent of the current or accumulated earnings and profits of the Company, as
computed for U.S. federal income tax purposes. To the extent that a distribution
exceeds the current and accumulated earnings and profits of the Company, such
distribution will be treated first as a tax-free return of capital to the extent
of a U.S. Holder's tax basis in the Common Shares and thereafter as gain from
the sale or exchange of such Common Shares (see Sale or Other Taxable
Disposition of Common Shares below). However, the Company may not maintain the
calculations of its earnings and profits in accordance with U.S. federal income
tax principles, and each U.S. Holder may have to assume that any distribution by
the Company with respect to the Common Shares will constitute dividend income.
Dividends received on Common Shares by corporate U.S. Holders generally will not
be eligible for the dividends received deduction. Subject to applicable
limitations, dividends paid by the Company to non-corporate U.S. Holders,
including individuals, generally will be eligible for the preferential tax rates
applicable to long-term capital gains for dividends, provided certain holding
period and other conditions are satisfied, including that the Company not be
classified as a PFIC (as defined below) in the tax year of distribution or in
the preceding tax year. The dividend rules are complex, and each U.S. Holder
should consult its own tax advisor regarding the application of such rules.
Sale or Other Taxable Disposition of Common Shares
A U.S. Holder will recognize gain or loss on the sale or other
taxable disposition of Common Shares in an amount equal to the difference, if
any, between (a) the amount of cash plus the fair market value of any property
received and (b) such U.S. Holders tax basis in such Common Shares sold or
otherwise disposed of. Any such gain or loss generally will be capital gain or
loss, which will be long-term capital gain or loss if, at the time of the sale
or other disposition, such Common Shares are held for more than one year.
S-19
Preferential tax rates apply to long-term capital gains of a
U.S. Holder that is an individual, estate, or trust. There are currently no
preferential tax rates for long-term capital gains of a U.S. Holder that is a
corporation. Deductions for capital losses are subject to significant
limitations under the Code.
Passive Foreign Investment Company Rules
If the Company were to constitute a passive foreign investment
company (
PFIC
) for any year during a U.S. Holders holding period,
then certain potentially adverse rules would affect the U.S. federal income tax
consequences to a U.S. Holder resulting from the acquisition, ownership and
disposition of Common Shares. The Company believes that it was not a PFIC for
its prior tax year ended December 31, 2015, and based on current business plans
and financial expectations, the Company expects that it should not be a PFIC for
its current tax year ending December 31, 2016. The Company has not made any
determination as to its PFIC status for future tax years. PFIC classification is
fundamentally factual in nature, generally cannot be determined until the close
of the tax year in question, and is determined annually. Additionally, the
analysis depends, in part, on the application of complex U.S. federal income tax
rules, which are subject to differing interpretations. Consequently, there can
be no assurance that the Company has never been and will not become a PFIC for
any tax year during which U.S. Holders hold Common Shares.
In any year in which the Company is classified as a PFIC, a
U.S. Holder will be required to file an annual report with the IRS containing
such information as Treasury Regulations and/or other IRS guidance may require.
In addition to penalties, a failure to satisfy such reporting requirements may
result in an extension of the time period during which the IRS can assess a tax.
U.S. Holders should consult their own tax advisors regarding the requirements of
filing such information returns under these rules, including the requirement to
file an IRS Form 8621.
The Company generally will be a PFIC if, after the application
of certain look-through rules with respect to subsidiaries in which the
Company holds at least 25% of the value of such subsidiary, for a tax year, (a)
75% or more of the gross income of the Company for such tax year is passive
income (the income test) or (b) 50% or more of the value of the Companys
assets either produce passive income or are held for the production of passive
income (the asset test), based on the quarterly average of the fair market
value of such assets. Gross income generally includes all sales revenues less
the cost of goods sold, plus income from investments and from incidental or
outside operations or sources, and passive income generally includes, for
example, dividends, interest, certain rents and royalties, certain gains from
the sale of stock and securities, and certain gains from commodities
transactions; however, certain active business gains arising from the sale of
commodities generally are excluded from passive income.
If the Company were a PFIC in any tax year during which a U.S.
Holder held Common Shares, such holder generally would be subject to special
rules with respect to excess distributions made by the Company on the Common
Shares and with respect to gain from the disposition of Common Shares. An
excess distribution generally is defined as the excess of distributions with
respect to the Common Shares received by a U.S. Holder in any tax year over 125%
of the average annual distributions such U.S. Holder has received from the
Company during the shorter of the three preceding tax years, or such U.S.
Holders holding period for the Common Shares.
S-20
Generally, a U.S. Holder would be required to allocate any
excess distribution or gain from the disposition of the Common Shares rateably
over its holding period for the Common Shares. Such amounts allocated to the
year of the disposition or excess distribution and any year prior to the first
year in which the Company was a PFIC would be taxed as ordinary income in the
year of the disposition or excess distribution, and amounts allocated to each
other tax year would be taxed as ordinary income at the highest tax rate in
effect for each such year for the applicable class of taxpayer and an interest
charge at a rate applicable to underpayments of tax would apply.
While there are U.S. federal income tax elections that
sometimes can be made to mitigate these adverse tax consequences (including the
QEF Election under Section 1295 of the Code and the Mark-to-Market Election
under Section 1296 of the Code), such elections are available in limited
circumstances and must be made in a timely manner.
U.S. Holders should be aware that, for each tax year, if any,
that the Company is a PFIC, the Company can provide no assurances that it will
satisfy the record keeping requirements or make available to U.S. Holders the
information such U.S. Holders require to make a QEF Election with respect to the
Company or any subsidiary that also is classified as a PFIC. U.S. Holders should
consult their own tax advisors regarding the potential application of the PFIC
rules to the ownership and disposition of Common Shares, and the availability of
certain U.S. tax elections under the PFIC rules.
Additional Considerations
Additional Tax on Passive Income
Certain individuals, estates and trusts whose income exceeds
certain thresholds will be required to pay a 3.8% Medicare surtax on net
investment income including, among other things, dividends and net gain from
disposition of property (other than property held in certain trades or
businesses). U.S. Holders should consult their own tax advisors regarding the
application, if any, of this tax on their ownership and disposition of Common
Shares.
Receipt of Foreign Currency
The amount of any distribution paid to a U.S. Holder in foreign
currency, or on the sale, exchange or other taxable disposition of Common
Shares, generally will be equal to the U.S. dollar value of such foreign
currency based on the exchange rate applicable on the date of receipt
(regardless of whether such foreign currency is converted into U.S. dollars at
that time). A U.S. Holder will have a basis in the foreign currency equal to its
U.S. dollar value on the date of receipt. Any U.S. Holder who converts or
otherwise disposes of the foreign currency after the date of receipt may have a
foreign currency exchange gain or loss that would be treated as ordinary income
or loss, and generally will be U.S. source income or loss for foreign tax credit
purposes. Different rules apply to U.S. Holders who use the accrual method with
respect to foreign currency. Each U.S. Holder should consult its own U.S. tax
advisor regarding the U.S. federal income tax consequences of receiving, owning,
and disposing of foreign currency.
S-21
Foreign Tax Credit
Subject to the PFIC rules discussed above, a U.S. Holder that
pays (whether directly or through withholding) Canadian income tax with respect
to dividends paid on the Common Shares generally will be entitled, at the
election of such U.S. Holder, to receive either a deduction or a credit for such
Canadian income tax. Generally, a credit will reduce a U.S. Holders U.S.
federal income tax liability on a dollar-for-dollar basis, whereas a deduction
will reduce a U.S. Holders income that is subject to U.S. federal income tax.
This election is made on a year-by-year basis and applies to all foreign taxes
paid (whether directly or through withholding) by a U.S. Holder during a
year.
Complex limitations apply to the foreign tax credit, including
the general limitation that the credit cannot exceed the proportionate share of
a U.S. Holders U.S. federal income tax liability that such U.S. Holders
foreign source taxable income bears to such U.S. Holders worldwide taxable
income. In applying this limitation, a U.S. Holders various items of income and
deduction must be classified, under complex rules, as either foreign source or
U.S. source. Generally, dividends paid by a foreign corporation should be
treated as foreign source for this purpose, and gains recognized on the sale of
stock of a foreign corporation by a U.S. Holder should be treated as U.S. source
for this purpose, except as otherwise provided in an applicable income tax
treaty, and if an election is properly made under the Code. However, the amount
of a distribution with respect to the Common Shares that is treated as a
dividend may be lower for U.S. federal income tax purposes than it is for
Canadian federal income tax purposes, resulting in a reduced foreign tax credit
allowance to a U.S. Holder. In addition, this limitation is calculated
separately with respect to specific categories of income. The foreign tax credit
rules are complex, and each U.S. Holder should consult its own U.S. tax advisor
regarding the foreign tax credit rules.
Backup Withholding and Information Reporting
Under U.S. federal income tax law, certain categories of U.S.
Holders must file information returns with respect to their investment in, or
involvement in, a foreign corporation. For example, U.S. return disclosure
obligations (and related penalties) are imposed on individuals who are U.S.
Holders that hold certain specified foreign financial assets in excess of
certain threshold amounts. The definition of specified foreign financial assets
includes not only financial accounts maintained in foreign financial
institutions, but also, unless held in accounts maintained by a financial
institution, any stock or security issued by a non-U.S. person, any financial
instrument or contract held for investment that has an issuer or counterparty
other than a U.S. person and any interest in a foreign entity. U.S. Holders may
be subject to these reporting requirements unless their Common Shares are held
in an account at certain financial institutions. Penalties for failure to file
certain of these information returns are substantial. U.S. Holders should
consult their own tax advisors regarding the requirements of filing information
returns, including the requirement to file an IRS Form 8938.
Payments made within the U.S. or by a U.S. payor or U.S.
middleman, of dividends on, and proceeds arising from the sale or other taxable
disposition of, Common Shares will generally be subject to information reporting
and backup withholding tax, at the rate of 28%, if a U.S. Holder (a) fails to
furnish such U.S. Holders correct U.S. taxpayer identification number
(generally on Form W-9), (b) furnishes an incorrect U.S. taxpayer identification
number, (c) is notified by the IRS that such U.S. Holder has previously failed
to properly report items subject to backup withholding tax, or (d) fails to certify, under penalty of
perjury, that such U.S. Holder has furnished its correct U.S. taxpayer
identification number and that the IRS has not notified such U.S. Holder that it
is subject to backup withholding tax. However, certain exempt persons generally
are excluded from these information reporting and backup withholding rules.
Backup withholding is not an additional tax. Any amounts withheld under the U.S.
backup withholding tax rules will be allowed as a credit against a U.S. Holders
U.S. federal income tax liability, if any, or will be refunded, if such U.S.
Holder furnishes required information to the IRS in a timely manner.
S-22
The discussion of reporting requirements set forth above is not
intended to constitute a complete description of all reporting requirements that
may apply to a U.S. Holder. A failure to satisfy certain reporting requirements
may result in an extension of the time period during which the IRS can assess a
tax, and under certain circumstances, such an extension may apply to assessments
of amounts unrelated to any unsatisfied reporting requirement. Each U.S. Holder
should consult its own tax advisor regarding the information reporting and
backup withholding rules.
EXPERTS
The Companys independent auditors, KPMG LLP, have audited the
consolidated financial statements of the Company as at December 31, 2015 and
December 31, 2014 and for each of the years in the three-year period ended
December 31, 2015. In connection with their audit, KPMG LLP has confirmed that
they are independent within the meaning of the relevant rules and related
interpretations prescribed by the relevant professional bodies in Canada and any
applicable legislation or regulation and under all relevant U.S. professional
and regulatory standards.
Each of the following Qualified Persons, within the meaning of
NI 43-101, have prepared a technical report for the Company or a technical
report for Uranerz which has been described in documents incorporated by
reference herein:
Douglas L. Beahm P.E., P.G. of BRS
Engineering prepared the technical report dated July 19, 2016 entitled Alta
Mesa Uranium Project, Alta Mesa and Mesteña Grande Mineral Resources and
Exploration Target, Technical Report National Instrument 43-101;
Geoffrey S. Carter of Broad Oak
Associates prepared the technical report dated March 4, 2016 entitled Technical
Report of Evaluation and Exploration Potential of the Roca Honda Project, New
Mexico, U.S.A.;
Allan Moran and Frank A. Davies of
SRK Consulting prepared the technical report dated March 10, 2015 entitled
Technical Report on Resources Wate Uranium Braccia Pipe-Northern Arizona,
U.S.A.;
Barton G. Stone, C.P.G., Robert
Michaud, Professional Engineer; Stuart E. Collins, Professional Engineer; and
Mark B. Mathisen, C.P.G. of Roscoe Postle Associates (USA) Ltd. prepared the
technical report dated February 27, 2015 entitled Technical Report on the Roca
Honda Project, McKinley County, New Mexico, U.S.A.;
S-23
Richard L. Nielsen, Certified
Professional Geologist; Thomas C. Pool, Registered Professional Engineer; Robert
L. Sandefur, Certified Professional Engineer; and Matthew P. Reilly,
Professional Engineer of Chlumsky, Armbrust and Meyer LLC prepared the technical
report dated March 22, 2013 entitled Technical Report Update of Gas Hills
Uranium Project Fremont and Natrona Counties, Wyoming, USA;
Thomas C. Pool, P.E. and David A.
Ross, M. Sc., P. Geo. of Roscoe Postle Associates Inc. prepared the technical
report dated June 27, 2012 entitled Technical Report on the Arizona Strip
Uranium Project, Arizona, U.S.A.;
David A. Ross, M.Sc., P.Geo. and
Christopher Moreton, Ph.D., P.Geo., of Roscoe Postle Associates Inc. prepared
the technical report dated June 27, 2012 entitled Technical Report on the EZ1
and EZ2 Breccia Pipes, Arizona Strip District, U.S.A.;
William E. Roscoe, Ph.D., P. Eng.,
Douglas H. Underhill, Ph.D., C.P.G., and Thomas C. Pool, P.E. of Roscoe Postle
Associates Inc. prepared the technical report dated June 27, 2012 entitled
Technical Report on the Henry Mountains Complex Uranium Property, Utah,
U.S.A.;
Douglas C. Peters, Certified
Professional Geologist, of Peters Geosciences prepared: (i) the technical report
dated March 18, 2015 entitled Updated Technical Report on Sage Plain Project
(Including the Calliham Mine) San Juan County, Utah, U.S.A.; (ii) the technical
report dated March 15, 2011 entitled Updated Technical Report on Energy Fuels
Resources Corporations Whirlwind Property (Including Whirlwind, Far West, and
Crosswind Claim Groups and Utah State Metalliferous Minerals Lease ML-49312),
Mesa County, Colorado and Grand County, Utah; (iii) the technical report dated
July 18, 2012 entitled The Daneros Mine Project, San Juan County, Utah, U.S.A;
and (iv) the technical report dated March 25, 2014 entitled Technical Report on
Energy Fuels Inc.s La Sal District Project (including the Pandora, Beaver and
Energy Queen projects).;
Douglas L. Beahm, P.E., P.G.
Principal Engineer of BRS Engineering prepared (i) the technical report dated
April 13, 2012 entitled Sheep Mountain Uranium Project Fremont County, Wyoming
USA Updated Preliminary Feasibility Study National Instrument 43-101
Technical Report, (ii) the technical report dated January 27, 2014 entitled
"Juniper Ridge Uranium Project, Carbon County, Wyoming, USA, Updated 43-101
Mineral Resource and Preliminary Economic Assessment Technical Report and (iii)
the technical report dated February 28, 2015 entitled Arkose Uranium Project,
Mineral Resource and Exploration Target, 43-101 Technical Report;
Terrence P. McNulty, P.E., D.Sc.
prepared the technical report dated January 27, 2014 entitled "Juniper Ridge
Uranium Project, Carbon County, Wyoming, USA, Updated 43-101 Mineral Resource
and Preliminary Economic Assessment Technical Report;
Douglas L. Beahm P.E., P.G. of BRS
Engineering and Paul Goranson, P.E. of the Company prepared the technical report
dated February 28, 2015 entitled Nichols Ranch Uranium Project, 43-101
Technical Report, Preliminary Economic Assessment;
Douglass H. Graves, P.E of Trec, Inc.
prepared (i) the technical report dated June 4, 2010 entitled Technical Report,
North Rolling Pin Property, Campbell County, Wyoming, U.S.A. and (ii) the technical report dated October 13, 2010 entitled
Technical Report, Reno Creek Property, Campbell County, Wyoming, U.S.A.;
and
S-24
Douglass H. Graves, P.E. of Trec,
Inc. and Don R. Woody, P.G. prepared the technical report dated December 9, 2008
entitled Technical Report, West North Butte Satellite Properties, Campbell
County, Wyoming, U.S.A.
LEGAL MATTERS
Certain legal matters in connection with the Offering will be
passed on for the Company by Borden Ladner Gervais LLP, Toronto, Ontario, as to
Canadian legal matters and Dorsey & Whitney LLP, Toronto, Ontario, as to
U.S. legal matters. The Agent is being represented in connection with this
offering by Cooley LLP, New York, New York, as to U.S. legal matters and
Stikeman Elliott LLP, Toronto, Ontario, as to Canadian legal matters.
AVAILABLE INFORMATION
The Company is a public company and files annual, quarterly and
special reports, proxy statements and other information with Canadian securities
regulatory authorities and the SEC. Any information filed with the SEC can be
read and copied at prescribed rates at the SECs Public Reference Room at 100 F
Street, N.E., Washington, D.C. 20549. Information on the operation of the Public
Reference Room may be obtained by calling the SEC at 1-800-SEC-0330 or by
accessing its website at www.sec.gov. Some of the documents the Company files
with or furnishes to the SEC are electronically available from the SECs
Electronic Data Gathering, Analysis and Retrieval system, which is commonly
known by the acronym EDGAR, and may be accessed at www.sec.gov.
S-25
|
|
ENERGY FUELS INC.
$100,000,000
Common Shares
Warrants
Rights
Subscription Receipts
Preferred Shares
Debt Securities
Units
|
|
Energy Fuels Inc. may offer and sell, from time to
time, up to $100,000,000 aggregate initial offering price of the Companys
common shares, without par value (which we refer to as
Common
Shares
), preferred shares of the Company issuable in series (which we
refer to as
Preferred
Shares
), warrants to purchase Common Shares, warrants to purchase
Preferred Shares (which we refer to collectively as
Warrants
),
rights to purchase Common Shares or other securities of the Company (which
we refer to as
Rights
),
subscription receipts for Common Shares, Warrants, Preferred Shares or any
combination thereof (which we refer to as
Subscription
Receipts
)
, or
debt securities of the Company which may or may not be converted into
other securities (which we refer to as
Debt
Securities
), or units which consist of any combination of Common
Shares. Preferred Shares, Warrants, Rights, Subscription Receipts or Debt
Securities (which we refer to as
Units
),
in one or more transactions under this Prospectus (which we refer to as
the
Prospectus
). The
Company may also offer under this Prospectus any Common Shares issuable
upon the exercise of Warrants and any Common Shares or other securities of
the Company issuable upon the exercise of Rights and any Common Shares
issuable on conversion of Subscription Receipts, Preferred Shares or Debt
Securities. Collectively, the Common Shares, Warrants, Rights,
Subscription Receipts, Preferred Shares, Debt Securities, Common Shares
issuable upon exercise of the Warrants, Common Shares or other securities
of the Company issuable upon the exercise of Rights, Subscription
Receipts, Preferred Shares, and Debt Securities and Units are referred to
as the
Securities.
|
|
This Prospectus provides you with a general description
of the Securities that we may offer. Each time we offer Securities, we
will provide you with a prospectus supplement (which we refer to as the
Prospectus Supplement
) that describes specific information about
the particular Securities being offered and may add, update or change
information contained in this Prospectus. You should read both this
Prospectus and the Prospectus Supplement, together with any additional
information which is incorporated by reference into this Prospectus and
the Prospectus Supplement.
This Prospectus may not be used to offer or
sell securities without the Prospectus Supplement
which includes a
description of the method and terms of that offering.
|
|
We may sell the Securities on a continuous or delayed
basis to or through underwriters, dealers or agents or directly to
purchasers. The Prospectus Supplement, which we will provide to you each
time we offer Securities, will set forth the names of any underwriters,
dealers or agents involved in the sale of the Securities, and any
applicable fee, commission or discount arrangements with them. For
additional information on the methods of sale, you should refer to the
section entitled Plan of Distribution in this Prospectus.
|
|
The Common Shares are traded on the NYSE MKT LLC (which
we refer to as the
NYSE MKT
) under the symbol UUUU and on the
Toronto Stock Exchange (which we refer to as the
TSX
) under the
symbol EFI. On April 29, 2016, the last reported sale price of the
Common Shares on the NYSE MKT was $2.34 per Common Share and on the TSX
was Cdn$2.93 per Common Share.
There is currently no market through
which the
Securities, other than the Common Shares, may be sold,
and purchasers may not be able to resell the
Securities purchased under this
Prospectus. This may affect the pricing of the Securities, other than the Common
Shares, in the secondary market, the transparency and availability of trading
prices, the liquidity of these Securities and the extent of issuer regulation.
See Risk Factors.
|
|
Investing in the Securities involves
risks. See Risk Factors on page 5.
These Securities have not been
approved or disapproved by the U.S. Securities and Exchange Commission (which we
refer to as the SEC) or any state securities commission nor has the SEC or any
state securities commission passed upon the accuracy or adequacy of this
Prospectus. Any representation to the contrary is a criminal offense.
|
THE DATE OF THIS PROSPECTUS
IS
, 2016.
|
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This Prospectus is a part of a registration statement that we
have filed with the SEC utilizing a shelf registration process. Under this
shelf registration process, we may sell any combination of the Securities
described in this Prospectus in one or more offerings up to a total dollar
amount of initial aggregate offering price of $100,000,000. This Prospectus
provides you with a general description of the Securities that we may offer. The
specific terms of the Securities in respect of which this Prospectus is being
delivered will be set forth in a Prospectus Supplement and may include, where
applicable: (i) in the case of Common Shares, the number of Common Shares
offered, the offering price and any other specific terms of the offering; (ii)
in the case of Warrants, the designation, number and terms of the Common Shares
or Preferred Shares purchasable upon exercise of the Warrants, any procedures
that will result in the adjustment of those numbers, the exercise price, dates
and periods of exercise, and the currency or the currency unit in which the
exercise price must be paid and any other specific terms; (iii) in the case of
Rights, the designation, number and terms of the Common Shares or other
securities of the Company purchasable upon exercise of the Rights, any
procedures that will result in the adjustment of these numbers, the date of
determining the shareholders entitled to the Rights distribution, the exercise
price, the dates and periods of exercise, the currency in which the Rights are
issued and any other terms specific to the Rights being offered; (iv) in the
case of Subscription Receipts, the designation, number and terms of the Common
Shares, Preferred Shares or Warrants receivable upon satisfaction of certain
release conditions, any procedures that will result in the adjustment of those
numbers, any additional payments to be made to holders of Subscription Receipts
upon satisfaction of the release conditions, the terms of the release
conditions, terms governing the escrow of all or a portion of the gross proceeds
from the sale of the Subscription Receipts, terms for the refund of all or a
portion of the purchase price for Subscription Receipts in the event the release
conditions are not met and any other specific terms; (v) in the case of
Preferred Shares, the rights, privileges, restrictions and conditions assigned
to the particular series upon the board of directors of the Company approving
their issuance, subject to the Companys articles of incorporation; (vi) in the
case of the Debt Securities, terms of any debt securities and any related
agreements or indentures; and (vii) in the case of Units, the designation,
number and terms of the Securities comprising the Units; A Prospectus Supplement
may include specific variable terms pertaining to the Securities that are not
within the alternatives and parameters set forth in this Prospectus.
In connection with any offering of the Securities (unless
otherwise specified in a Prospectus Supplement), the underwriters or agents may
over-allot or effect transactions which stabilize or maintain the market price
of the Securities offered at a higher level than that which might exist in the
open market. Such transactions, if commenced, may be interrupted or discontinued
at any time. See Plan of Distribution.
Please carefully read both this Prospectus and any Prospectus
Supplement together with the documents incorporated herein and therein by
reference under Documents Incorporated by Reference, any free writing
prospectus and the additional information described below under Where You Can
Find More Information.
Owning securities may subject you to tax consequences both
in Canada and the United States. This Prospectus or any applicable Prospectus
Supplement may not describe these tax consequences fully. You should read the
tax discussion in any Prospectus Supplement with respect to a particular
offering and consult your own tax advisor with respect to your own particular
circumstances.
References in this Prospectus to $ are to United States
dollars. Canadian dollars are indicated by the symbol Cdn$.
You should rely only on the information contained in this
Prospectus. We have not authorized anyone to provide you with information
different from that contained in this Prospectus. The distribution or possession
of this Prospectus in or from certain jurisdictions may be restricted by law.
This Prospectus is not an offer to sell these Securities and is not soliciting
an offer to buy these Securities in any jurisdiction where the offer or sale is
not permitted or where the person making the offer or sale is not qualified to
do so or to any person to whom it is not permitted to make such offer or sale.
The information contained in this Prospectus is accurate only as of the date of
this Prospectus, regardless of the time of delivery of this Prospectus or of any
sale of the Securities. Our business, financial condition, results of operations
and prospects may have changed since that date.
In this Prospectus and in any Prospectus Supplement, unless the
context otherwise requires, references to Energy Fuels Company, we, us,
Registrant, our refer to Energy Fuels Inc., either alone or together with
its subsidiaries as the context requires.
1
SUMMARY
The Company
Energy Fuels is engaged in conventional extraction and
in
situ
recovery (
ISR
) of uranium, along with the exploration,
permitting, and evaluation of uranium properties in the United States. Energy
Fuels owns the Nichols Ranch uranium recovery facility in Wyoming (the
Nichols Ranch Project
), which is one of the newest ISR uranium recovery
facilities operating in the United States. In addition, Energy Fuels owns the
White Mesa Mill in Utah (the
White Mesa Mill
), which is the only
conventional uranium recovery facility operating in the United States. The
Company also owns uranium and uranium/vanadium properties and projects in
various stages of exploration, permitting, and evaluation, as well as
fully-permitted uranium and uranium/vanadium projects on standby. The White Mesa
Mill can also recover vanadium as a co-product of mineralized material produced
from certain of its projects in Colorado and Utah. In addition, Energy Fuels
recovers uranium from other uranium-bearing materials not derived from
conventional material, referred to as alternate feed materials, at its White
Mesa Mill.
The registered and head office of Energy Fuels is located at 80
Richmond Street West, Victory Building, 18
th
Floor, Toronto, Ontario,
M5H 2A4, Canada. Energy Fuels conducts its business and owns its assets in the
United States through its U.S. subsidiaries, which have their principal place of
business and corporate office at 225 Union Blvd., Suite 600, Lakewood, Colorado
80228, USA. Energy Fuels website address is www.energyfuels.com.
Recent Developments
On April 15, 2016, the Company announced the appointment of Mr. Mark Chalmers as Chief Operating Officer of the Company. Mr. Chalmers will join the Company’s management team in July 2016 and oversee all of the Company’s conventional and ISR uranium production operations. From 2011 to 2015, Mr. Chalmers served as Executive General Manager of Production for Paladin Energy Ltd., a uranium producer with assets in Australia and Africa, including the Langer Heinrich and Kayelekera mines, where he oversaw sustained, significant increases in production while reducing operating costs. He also possesses extensive experience in ISR uranium production, including management of the Beverley Uranium Mine owned by General Atomics (Australia), and the Highland mine owned by Cameco Corporation (USA). Mr. Chalmers has also consulted to several of the largest players in the uranium supply sector, including BHP Billiton, Rio Tinto, and Marubeni, and currently serves as the Chair of the Australian Uranium Council, a position he has held since 2007. Mr. Chalmers represents a valuable addition to our management team and an important element in our overall management continuity and succession planning strategy.
The Securities Offered under this Prospectus
We may offer the Common Shares, Warrants, Rights, Subscription
Receipts, Preferred Shares, Debt Securities or Units with a total value of up to
$100,000,000 from time to time under this Prospectus, together with any
applicable Prospectus Supplement and related free writing prospectus, if any, at
prices and on terms to be determined by market conditions at the time of
offering. This Prospectus provides you with a general description of the
Securities we may offer. Each time we offer Securities, we will provide a
Prospectus Supplement that will describe the specific amounts, prices and other
important terms of the Securities, including, to the extent applicable:
-
aggregate offering price;
-
the designation, number and terms of the Common Shares purchasable upon
exercise of the Warrants, any procedures that will result in the adjustment of
those numbers, the exercise price, dates and periods of exercise, and the
currency or the currency unit in which the exercise price must be paid and any
other specific terms;
-
the record date for shareholders entitled to receive the Rights, the
designation, number and terms of the Common Shares or other securities
purchasable upon exercise of the Rights, any procedures that will result in
the adjustment of those numbers, the exercise price, dates and periods of
exercise, and the currency or the currency unit in which the exercise price
must be paid and any other specific terms;
-
rates and times of payment of interest or dividends, if any;
-
redemption, conversion, exchange or sinking funds terms, if any;
-
rank and security, if any;
-
conversion or exchange prices or rates, if any, and if applicable, any
provision for changes or adjustment in the conversion or exchange prices or
rates in the securities or other property receivable upon conversion or
exchange;
-
restrictive covenants, if any;
2
-
voting or other rights, if any; and
-
important United States and Canadian federal income tax considerations.
A Prospectus Supplement and any related free writing prospectus
that we may authorize to be provided to you may also add, update or change
information contained in this Prospectus or in documents we have incorporated by
reference. However, no Prospectus Supplement or free writing prospectus will
offer a security that is not registered and described in this Prospectus at the
time of the effectiveness of the registration statement of which this Prospectus
is a part.
We may sell the Securities on a continuous or delayed basis to
or through underwriters, dealers or agents or directly to purchasers. The
Prospectus Supplement, which we will provide to you each time we offer
Securities, will set forth the names of any underwriters, dealers or agents
involved in the sale of the Securities, and any applicable fee, commission or
discount arrangements with them.
Common Shares
We may offer Common Shares. Holders of Common Shares are
entitled to one vote per Common Share on all matters that require shareholder
approval.
Our Common Shares are described in greater detail in this
Prospectus under Description of Common Shares.
Warrants
We may offer Warrants for the purchase of Common Shares or
Preferred Shares, in one or more series, from time to time. We may issue
Warrants independently or together with Common Shares or Preferred Shares and
the Warrants may be attached to or separate from such securities.
The Warrants will be evidenced by warrant certificates and may
be issued under one or more warrant indentures, which are contracts between us
and a warrant trustee for the holders of the Warrants. In this Prospectus, we
have summarized certain general features of the Warrants under Description of
Warrants. We urge you, however, to read any Prospectus Supplement and any free
writing prospectus that we may authorize to be provided to you related to the
series of Warrants being offered, as well as the complete warrant indentures, if
applicable, and warrant certificates that contain the terms of the Warrants. If
applicable, specific warrant indentures will contain additional important terms
and provisions and will be filed as exhibits to the registration statement of
which this Prospectus is a part, or incorporated by reference from a current
report on Form 8-K that we file with the SEC.
Rights
We may offer Rights to our existing shareholders to purchase
additional Common Shares, preferred shares or other securities of the Company.
For any particular Rights, the applicable Prospectus Supplement will describe
the terms of such rights and rights agreement including the period during which
such Rights may be exercised, the manner of exercising such Rights, the
transferability of such Rights and the number of Common Shares or other
securities that may be purchased in connection with each right and the
subscription price for the purchase of such Common Shares or other securities.
In connection with a rights offering, we may enter into a separate agreement
with one or more underwriters or standby purchasers to purchase any securities
not subscribed for in the rights offering by existing shareholders, which will
be described in the applicable Prospectus Supplement. Each series of rights will
be issued under a separate rights agreement to be entered into between us and a
bank, trust company or transfer agent, as rights agent.
In this Prospectus, we have summarized certain general features
of the Rights under Description of Rights. We urge you, however, to read any
Prospectus Supplement and any free writing prospectus that we may authorize to
be provided to you related to the Rights being offered, as well as the complete
Rights certificates that contain the terms of the Rights. We may evidence each
series of rights by rights certificates that we may issue under a separate
rights agreement with a rights agent. If applicable, we will file as exhibits to
the registration statement of which this Prospectus is a part, or will
incorporate by reference from a current report on Form 8-K that we file with the
SEC, the rights agreements that describe the terms of the series of Rights we
are offering before the issuance of the related series of Rights.
Subscription Receipts
We may issue Subscription Receipts, which will entitle holders
to receive upon satisfaction of certain release conditions and for no additional
consideration, Common Shares, Preferred Shares, Warrants or other securities of
the Company or any combination thereof. Subscription Receipts will be issued
pursuant to one or more subscription receipt agreements, each to be entered into
between us and an escrow agent, which will establish the terms and conditions of
the Subscription Receipts. Each escrow agent will be a financial institution
organized under the laws of the United States or any state thereof or Canada or
any province thereof and authorized to carry on business as a
trustee. A copy of the form of subscription receipt agreement will be filed as
an exhibit to the registration statement of which this Prospectus is a part, or
will be incorporated by reference from a Current Report on Form 8-K that we file
with the SEC.
3
Preferred Shares
We may offer Preferred Shares. The Preferred Shares issuable in
series will have the rights, privileges, restrictions and conditions assigned to
the particular series upon the board of directors of the Company approving their
issuance, subject to the Companys articles of incorporation. We currently have
authorized an unlimited number of Series A Preferred Shares which are
non-redeemable, non-callable, non-voting and do not have a right to dividends.
The terms of any preferred shares offered under this Prospectus and any related
agreements will be described in the Prospectus Supplement filed in respect of
the issuance of such preferred shares.
Debt Securities
We may offer secured or unsecured Debt Securities under this Prospectus. The terms
of any Debt Securities and any related agreements or indentures will be
described in a Prospectus Supplement to be filed in respect of such offering.
Units
We may offer Units consisting of Common Shares, Warrants,
Preferred Shares, Rights, Subscription Receipts and Debt Securities in any
combination. In this Prospectus, we have summarized certain general features of
the Units under Description of Units. We urge you, however, to read any
Prospectus Supplement and any free writing prospectus that we may authorize to
be provided to you related to the series of Units being offered. We may evidence
each series of Units by unit certificates that we may issue under a separate
unit agreement with a unit agent. If applicable, we will file as exhibits to the
registration statement of which this Prospectus is a part, or will incorporate
by reference from a current report on Form 8-K that we file with the SEC, the
unit agreements that describe the terms of the series of Units we are offering
before the issuance of the related series of Units.
Risk Factors
See
Risk Factors,
as well as other information
included in this prospectus, for a discussion of factors you should read and
consider carefully before investing in our securities
THIS PROSPECTUS MAY NOT BE USED TO OFFER OR SELL ANY
SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
4
RISK FACTORS
Investing in the Securities involves a high degree of risk.
Prospective investors in a particular offering of Securities should carefully
consider the following risks, as well as the other information contained in this
Prospectus, any applicable Prospectus Supplement, and the documents incorporated
by reference herein before investing in the Securities. If any of the following
risks actually occurs, our business could be materially harmed. Additional
risks, including those of which we are currently unaware or that we deem
immaterial, may also adversely affect our business. You should also read and
carefully consider the risk factors incorporated by reference to our Annual
Report on Form 10-K for the fiscal year ended December 31, 2015, as amended, and
the other information contained in this Prospectus, as updated by our subsequent
filings under the Securities Exchange Act of 1934, as amended and the risk
factors and other information contained in any applicable Prospectus Supplement,
before purchasing any of our Securities.
You may experience future dilution as a result of future
equity offerings.
In order to raise additional capital, we may in the future
offer additional Common Shares or other securities convertible into or
exchangeable for Common Shares at prices that may not be the same as the price
per share paid by any investor in an offering in a subsequent Prospectus
Supplement. We may sell shares or other securities in any other offering at a
price per share that is less than the price per share paid by any investor in an
offering in a subsequent Prospectus Supplement, and investors purchasing shares
or other securities in the future could have rights superior to you. The price
per share at which we sell additional Common Shares or securities convertible or
exchangeable into Common Shares, in future transactions may be higher or lower
than the price per share paid by any investor in an offering under a subsequent
Prospectus Supplement.
Future offerings of debt or preferred equity securities,
which would rank senior to our Common Shares, may adversely affect the market
price of our common shares.
If, in the future, we decide to issue debt or preferred equity
securities that may rank senior to our Common Shares, it is likely that such
securities will be governed by an indenture or other instrument containing
covenants restricting our operating flexibility. Any convertible or exchangeable
securities that we issue in the future may have rights, preferences and
privileges more favorable than those of our Common Shares and may result in
dilution to owners of our Common Shares. We and, indirectly, our shareholders,
will bear the cost of issuing and servicing such securities. Because our
decision to issue debt or equity securities in any future offering will depend
on market conditions and other factors beyond our control, we cannot predict or
estimate the amount, timing or nature of our future offerings. Thus, holders of
our common shares will bear the risk of our future offerings reducing the market
price of our Common Shares and diluting the value of their stock holdings in us.
There can be no assurance as to the liquidity of the
trading market for certain Securities or that a trading market for certain
Securities will develop.
There is no public market for the Warrants, Preferred Shares,
Rights, Subscription Receipts or Debt Securities and, unless otherwise specified
in the applicable Prospectus Supplement, the Company does not intend to apply
for listing of these securities on any securities exchange. If these securities
are traded after their initial issue, they may trade at a discount from their
initial offering prices depending on the market for similar securities,
prevailing interest rates and other factors, including general economic
conditions and the Companys financial condition. There can be no assurance as
to the liquidity of the trading market for any Warrants, Preferred Shares,
Rights, Subscription Receipts or Debt Securities or that a trading market for
these securities will develop.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus and the documents incorporated by reference
herein contain forward-looking statements within the meaning of applicable US
and Canadian securities laws. Such forward-looking statements concern the
Companys anticipated results and progress of the Companys operations in future
periods, planned exploration, and, if warranted, development of its properties,
plans related to its business, and other matters that may occur in the future.
These statements relate to analyses and other information that are based on
forecasts of future results, estimates of amounts not yet determinable and
assumptions of management.
5
Any statements that express or involve discussions with respect
to predictions, expectations, beliefs, plans, projections, objectives,
schedules, assumptions, future events, or performance (often, but not always,
using words or phrases such as expects or does not expect, is expected,
anticipates or does not anticipate, plans, estimates or intends, or
stating that certain actions, events or results may, could, would, might
or will be taken, occur or be achieved) are not statements of historical fact
and may be forward-looking statements.
Forward-looking statements are based on the opinions and
estimates of management as of the date such statements are made. Energy Fuels
believes that the expectations reflected in this forward-looking information are
reasonable, but no assurance can be given that these expectations will prove to
be correct, and such forward-looking information included in, or incorporated by
reference into, this Prospectus should not be unduly relied upon. This
information speaks only as of the date of this Prospectus or as of the date of
the document incorporated by reference herein.
Readers are cautioned that it would be unreasonable to rely on
any such forward-looking statements and information as creating any legal
rights, and that the statements and information are not guarantees and may
involve known and unknown risks, and that actual results are likely to differ
(and may differ materially) and objectives and strategies may differ or change
from those expressed or implied in the forward-looking statements or information
as a result of various factors. Such risks include risks generally encountered
in the exploration, development, operation, and closure of mineral properties
and processing facilities. Forward-looking statements are subject to a variety
of known and unknown risks and other factors which could cause actual events or
results to differ from those expressed or implied by the forward-looking
statements, including, without limitation:
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risks associated with mineral reserve and resource
estimates, including the risk of errors in assumptions or methodologies;
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risks associated with estimating mineral extraction and
recovery, forecasting future price levels necessary to support mineral
extraction and recovery, and the Companys ability to increase mineral
extraction and recovery in response to any increases in commodity prices
or other market conditions;
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risks related to liabilities inherent to conventional
mineral extraction and recovery and/or ISR uranium operations;
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geological, technical and processing problems, including
unanticipated metallurgical difficulties, less than expected recoveries,
ground control problems, process upsets, and equipment malfunctions;
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risks associated with labor costs, labor disturbances,
and unavailability of skilled labor;
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risks associated with the availability and/or
fluctuations in the costs of raw materials and consumables used in the
Companys production processes;
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risks associated with environmental compliance and
permitting, including those created by changes in environmental
legislation and regulation, and delays in obtaining permits and licenses
that could impact expected mineral extraction and recovery levels and
costs;
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actions taken by regulatory authorities with respect to
mineral extraction and recovery activities;
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risks associated with the Companys dependence on third
parties in the provision of transportation and other critical services or
goods;
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risks associated with the ability of the Company to
negotiate access rights on certain properties on favorable terms or at
all;
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risks associated with the ability of the Company to
extend or renew land tenure, including mineral leases and surface use
agreements, on favorable terms or at all;
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the adequacy of insurance coverage;
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risks related to reclamation and decommissioning
liabilities;
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the ability of the Companys bonding companies to require
increases in the collateral required to secure reclamation obligations;
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the potential for, and outcome of, litigation and other
legal proceedings, including potential injunctions pending the outcome of
such litigation and proceedings;
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the ability of the Company to meet its obligations to its
creditors;
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risks associated with paying off indebtedness at its
maturity;
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risks associated with the Companys relationships with
its business and joint venture partners;
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failure to obtain industry partner, government, and other
third party consents and approvals, when required;
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competition for, among other things, capital, mineral
properties, and skilled personnel;
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failure to complete proposed acquisitions and incorrect
assessments of the value of completed acquisitions;
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risks posed by fluctuations in share price levels,
exchange rates and interest rates, and general economic conditions;
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risks inherent in the Companys and industry analysts
forecasts or predictions of future uranium and vanadium price levels;
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6
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fluctuations in the market prices
of uranium and vanadium, which are cyclical and subject to substantial
price fluctuations;
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failure to obtain suitable
uranium sales terms, including spot and term sale contracts;
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risks associated with asset
impairment as a result of market conditions;
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risks associated with lack of
access to markets and the ability to access capital;
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the market price of Energy Fuels
securities;
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public resistance to nuclear
energy or uranium extraction and recovery;
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uranium industry competition and
international trade restrictions;
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risks related to higher than
expected costs related to our Nichols Ranch Project and Canyon Project;
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risks related to securities
regulations;
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risks related to stock price and
volume volatility;
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risks related to our ability to
maintain our listing on the NYSE MKT and/or TSX;
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risks related to our ability to
maintain our inclusion in various stock indices;
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risks related to dilution of
currently outstanding shares;
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risks related to our lack of
dividends;
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risks related to recent market
events;
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risks related to our issuance of
additional Common Shares or other securities;
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risks related to acquisition and
integration issues;
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risks related to defects in title
to our mineral properties;
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risks related to our outstanding
debt; and
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risks related to our securities.
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This list is not exhaustive of the factors that may affect our
forward-looking statements. Some of the important risks that could affect
forward-looking statements are described further in the documents incorporated
by reference into this Prospectus. Although we have attempted to identify
important factors that could cause actual results to differ materially from
those described in forward-looking statements, there may be other factors that
cause results not to be as anticipated, estimated or intended. Should one or
more of these risks materialize, or should underlying assumptions prove
incorrect, actual results may vary materially from those anticipated, believed,
estimated, or expected. We caution readers not to place undue reliance on any
such forward-looking statements, which speak only as of the date made. Except as
required by law, we disclaim any obligation to subsequently revise any
forward-looking statements to reflect events or circumstances after the date of
such statements or to reflect the occurrence of anticipated or unanticipated
events. Statements relating to mineral reserves or mineral resources are
deemed to be forward-looking information, as they involve the implied
assessment, based on certain estimates and assumptions that the mineral reserves
and mineral resources described may be profitably extracted in the future.
We qualify all the forward-looking statements contained in
this Prospectus by the foregoing cautionary statements
.
CAUTIONARY NOTE TO UNITED STATES INVESTORS CONCERNING
DISCLOSURE OF MINERAL RESOURCES
This Prospectus contains or incorporates by reference certain
disclosure that has been prepared in accordance with the requirements of
Canadian securities laws, which differ from the requirements of the United
States securities laws. Unless otherwise indicated, all reserve and resource
estimates included in this Prospectus and in the documents incorporated by
reference herein, have been prepared in accordance with Canadian National
Instrument 43-101 -
Standards of Disclosure for Mineral Projects
(
NI
43-101
) and the Canadian Institute of Mining, Metallurgy and Petroleum
(
CIM
) classification system. NI 43-101 is a rule developed by the
Canadian Securities Administrators (the
CSA
) which establishes
standards for all public disclosure an issuer makes of scientific and technical
information concerning mineral projects.
Canadian standards, including NI 43-101, differ significantly
from the requirements of the SEC. Reserve and resource information contained
herein, or incorporated by reference in this Prospectus, and in the documents
incorporated by reference herein, may not be comparable to similar information
disclosed by companies reporting under only United States standards. In
particular, and without limiting the generality of the foregoing, the term
resource does not equate to the term reserve under SEC Industry Guide 7.
Under United States standards, mineralization may not be classified as a
reserve unless the determination has been made that the mineralization could
be economically and legally produced or extracted at the time the reserve
determination is made. Under SEC Industry Guide 7 standards, a final or
bankable feasibility study is required to report reserves; the three-year historical average price, to the extent possible, is used in
any reserve or cash flow analysis to designate reserves; and the primary
environmental analysis or report must be filed with the appropriate governmental
authority.
7
The SECs disclosure standards under Industry Guide 7 normally
do not permit the inclusion of information concerning measured mineral
resources, indicated mineral resources or inferred mineral resources or
other descriptions of the amount of mineralization in mineral deposits that do
not constitute reserves by United States standards in documents filed with the
SEC. United States investors should also understand that inferred mineral
resources have a great amount of uncertainty as to their existence and as to
their economic and legal feasibility. It cannot be assumed that all or any part
of an inferred mineral resource will ever be upgraded to a higher category.
Under Canadian rules, estimated inferred mineral resources may not form the
basis of feasibility or prefeasibility studies.
United States investors are
cautioned not to assume that all or any part of measured or indicated mineral
resources will ever be converted into mineral reserves. Investors are cautioned
not to assume that all or any part of an inferred mineral resource exists or
is economically or legally mineable.
Disclosure of contained pounds or contained ounces in a
resource estimate is permitted disclosure under Canadian regulations; however,
the SEC normally only permits issuers to report mineralization that does not
constitute reserves by SEC standards as in-place tonnage and grade without
reference to unit measures. The requirements of NI 43-101 for identification of
reserves are also not the same as those of the SEC, and reserves reported by
the Company in compliance with NI 43-101 may not qualify as reserves under SEC
Industry Guide 7 standards. Accordingly, information concerning mineral deposits
set forth herein may not be comparable to information made public by companies
that report in accordance with United States standards.
As a company incorporated in Canada, unless otherwise
indicated, we estimate and report our resources and our current reserves
according to the definitions set forth in NI 43-101.
8
DOCUMENTS INCORPORATED BY REFERENCE
We incorporate by reference the documents listed below and
future filings we make with the SEC pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended (which we refer to as
the
Exchange Ac
t) (excluding, unless otherwise provided therein or
herein, information furnished pursuant to Item 2.02, Item 7.01 and certain
exhibits furnished pursuant to Item 9.01 of our Current Reports on Form 8-K,
which are deemed to be furnished and not filed and therefore not incorporated by
reference herein, unless specifically stated otherwise in such filings, after
the date of the initial filing of this registration statement on Form S-3 to
which this Prospectus relates until the termination of the offering under this
Prospectus.) Any statement contained in a document incorporated by reference in
this Prospectus shall be modified or superseded for purposes of this Prospectus
to the extent that a statement contained in this Prospectus, any related free
writing prospectus or in any other subsequently filed document which is
incorporated by reference modifies or supersedes such statement.
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a.
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our Annual Report on Form 10-K, for the year ended
December 31, 2015, as filed with the SEC on March 15, 2016;
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b.
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our proxy statement on Schedule 14A, dated March 24,
2016, in connection with our May 18, 2016 annual meeting of
shareholders;
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c.
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our Current Reports on Form 8-K filed with the SEC on
January 26, 2016, February 1, 2016, March 8, 2016, March 10, 2016, March
14, 2016, and April 20, 2016; and
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d.
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the description of our Common Shares contained in our
registration statement on Form 40-F filed on November 15, 2013, including
any amendment or report filed for purposes of updating such
description.
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Copies of the documents incorporated by reference in this
Prospectus may be obtained on written or oral request without charge from our
Investor Relations Department at 225 Union Blvd., Suite 600, Lakewood, Colorado,
80228 (telephone: (303) 974-2140).
We also maintain a web site at http://www.energyfuels.com
through which you can obtain copies of documents that we have filed with the
SEC. The contents of that site are not incorporated by reference into or
otherwise a part of this prospectus.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERENCE
DIVIDENDS
The following table sets forth our consolidated ratio of
earnings to combined fixed charges and preference dividends for the periods
indicated.
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Fiscal Year Ended December 31,
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2011
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2012
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2013
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2014
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2015
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Ratio of Earnings to Combined Fixed
Charges and Preference Dividends(1)
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(3,655.5
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)
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22.9
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(23.9
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)
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(50.3
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)
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(39.5
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)
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(1)
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The ratio of earnings to combined fixed charges and
preference dividends represents the number of times that fixed charges and
preference dividends are covered by earnings. Earnings consist of income
or loss from continuing operations before income taxes and fixed charges,
excluding preference dividends. Fixed charges consist of interest expensed
and capitalized under capital leases, estimated interest expense within
rental expense, and preference dividends. In the years ended December 31,
2015, 2014, 2013, and 2011, earnings were insufficient to cover fixed
charges by $80.32 million, $84.95 million, $35.12 million and $57.34
million, respectively.
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As of the date of this prospectus, we have no Preferred Shares outstanding. Consequently, our ratio of earnings to combined
fixed charges and Preferred Share dividends and ratio of earnings to fixed
charges would be identical.
9
USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus
Supplement, the net proceeds from the sale of Securities will be used by us for
acquisitions, the exploration and development, as warranted, of existing or
acquired mineral properties, working capital requirements or for other general
corporate purposes.
More detailed information regarding the use of proceeds
from the sale of Securities will be described in the applicable Prospectus
Supplement.
We may, from time to time, issue Common Shares or other
securities otherwise than through the offering of Securities pursuant to this
Prospectus.
DESCRIPTION OF COMMON SHARES
We are authorized to issue an unlimited number of Common Shares, without par value, of which 51,890,745 are issued and outstanding as at the date of this Prospectus. As of the date of this Prospectus, there are (a) options outstanding to purchase up to 2,420,307 Common Shares at exercise prices ranging from $2.12 to $15.61 and (b) restricted stock units redeemable for 1,075,779 Common Shares and (c) 4,547,598 warrants outstanding to purchase Common Shares at exercise prices ranging from $3.20 to $10.56. Options and warrants which were granted and are reported in Canadian dollars were translated into US dollars at the April
29, 2016 foreign exchange rate of Cdn$1 = $0.7969 US dollar.
In addition, on July 24, 2012, the Company issued Cdn$22,000,000 aggregate principal amount of convertible debentures (the
“Debentures”
). The Debentures will mature on June 30, 2017 and may be converted into Common Shares of the Company at the option of the holder at a conversion price, subject to certain adjustments, of Cdn$15.00 per share at any time prior to redemption or maturity. As of April 14, 2016, up to 1,466,667 Common Shares are issuable upon conversion of the Debentures. At maturity, the Debentures may be retired either through the payment of cash or, at the option of the Company, the issuance of Common Shares. If retired through the issuance of Common Shares, the number of Common Shares will be obtained by dividing the principal amount of the Debentures by 95% of the volume weighted average trading price of the Common Shares on the TSX over the 20 consecutive trading days ending five days prior to maturity.
Holders of Common Shares are entitled to one vote per Common
Share at all meetings of shareholders. The holders of Common Shares are also
entitled to receive dividends as and when declared by our Board of Directors and
to receive a
pro rata
share of the assets of the Company available for
distribution to the holders of Common Shares in the event of the liquidation,
dissolution or winding-up of the Company. There are no pre-emptive, conversion
or redemption rights attached to the Common Shares.
DESCRIPTION OF WARRANTS
The following description, together with the additional
information we may include in any applicable Prospectus Supplements and free
writing prospectuses, summarizes the material terms and provisions of the
Warrants that we may offer under this Prospectus, which will consist of Warrants
to purchase Common Shares or Preferred Shares and may be issued in one or more
series. Warrants may be offered independently or together with Common Shares or
Preferred Shares, Rights or any combination thereof, and may be attached to or
separate from those Securities. While the terms we have summarized below will
apply generally to any Warrants that we may offer under this Prospectus, we will
describe the particular terms of any series of Warrants that we may offer in
more detail in the applicable Prospectus Supplement and any applicable free
writing prospectus. The terms of any Warrants offered under a Prospectus
Supplement may differ from the terms described below.
General
Warrants may be issued under and governed by the terms of one
or more warrant indentures (each of which we refer to as a
Warrant
Indenture
) between us and a warrant trustee (which we refer to as the
Warrant Trustee
) that we will name in the relevant Prospectus
Supplement, if applicable. Each Warrant Trustee will be a financial institution
organized under the laws of Canada, the United States, or any province or state
thereof, and authorized to carry on business as a trustee.
This summary of some of the provisions of the Warrants is not
complete. The statements made in this Prospectus relating to any Warrant
Indenture and Warrants to be issued under this Prospectus are summaries of
certain anticipated provisions thereof and do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all provisions
of the Warrant Indenture, if any, and the Warrant certificate. Prospective
investors should refer to the Warrant Indenture, if any, and the Warrant
certificate relating to the specific Warrants being offered for the complete
terms of the Warrants. If applicable, we will file as exhibits to the
registration statement of which this Prospectus is a part, or will incorporate
by reference from a Current Report on Form 8-K that we file with the SEC, any Warrant Indenture describing the terms and
conditions of Warrants we are offering before the issuance of such Warrants.
10
The applicable Prospectus Supplement relating to any Warrants
offered by us will describe the particular terms of those Warrants and include
specific terms relating to the offering. This description will include, where
applicable:
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the designation and aggregate number of Warrants;
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the price at which the Warrants will be offered;
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the currency or currencies in which the Warrants will be offered;
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the date on which the right to exercise the Warrants will commence and the
date on which the right will expire;
-
the number of Common Shares or Preferred Shares that may be purchased upon
exercise of each Warrant and the price at which and currency or currencies in
which the Common Shares or Preferred Shares may be purchased upon exercise of
each Warrant;
-
the designation and terms of any Securities with which the Warrants will
be offered, if any, and the number of the Warrants that will be offered with
each Security;
-
the date or dates, if any, on or after which the Warrants and the other
Securities with which the Warrants will be offered will be transferable
separately;
-
whether the Warrants will be subject to redemption and, if so, the terms
of such redemption provisions;
-
whether we will issue the Warrants as global securities and, if so, the
identity of the depositary of the global securities;
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whether the Warrants will be listed on any exchange;
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material United States and Canadian federal income tax consequences of
acquiring, owning, exercising and disposing of the Warrants; and
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any other material terms or conditions of the Warrants.
Rights of Holders Prior to Exercise
Prior to the exercise of their Warrants, holders of Warrants
will not have any of the rights of holders of the Common Shares or Preferred
Shares issuable upon exercise of the Warrants.
Exercise of Warrants
Each Warrant will entitle the holder to purchase the Common
Shares or Preferred Shares that we specify in the applicable Prospectus
Supplement at the exercise price that we describe therein. Unless we otherwise
specify in the applicable Prospectus Supplement, holders of the Warrants may
exercise the Warrants at any time up to the specified time on the expiration
date that we set forth in the applicable Prospectus Supplement. After the close
of business on the expiration date, unexercised Warrants will become void.
Holders of the Warrants may exercise the Warrants by delivering
the Warrant certificate representing the Warrants to be exercised together with
specified information, and paying the required amount to the Warrant Trustee, if
any, or to us, as applicable, in immediately available funds, as provided in the
applicable Prospectus Supplement. We will set forth on the Warrant certificate
and in the applicable Prospectus Supplement the information that the holder of
the Warrant will be required to deliver to the Warrant Trustee, if any, or to
us, as applicable.
Upon receipt of the required payment and the Warrant
certificate properly completed and duly executed at the corporate trust office
of the Warrant Trustee, if any, to us at our principal offices, as applicable,
or any other office indicated in the applicable Prospectus Supplement, we will
issue and deliver the Common Shares or Preferred Shares purchasable upon such
exercise. If fewer than all of the Warrants represented by the Warrant
certificate are exercised, then we will issue a new Warrant certificate for the
remaining amount of Warrants. If we so indicate in the applicable Prospectus
Supplement, holders of the Warrants may surrender securities as all or part of
the exercise price for Warrants.
Anti-Dilution
The Warrant Indenture, if any, and the Warrant certificate will
specify that upon the subdivision, consolidation, reclassification or other
material change of the Common Shares or Preferred Shares or any other
reorganization, amalgamation, merger or sale of all or substantially all of our
assets, the Warrants will thereafter evidence the right of the holder to receive
the securities, property or cash deliverable in exchange for or on the
conversion of or in respect of the Common Shares or Preferred Shares to which
such holder would have been entitled immediately after such event. Similarly, any distribution to all or substantially
all of the holders of Common Shares or Preferred Shares of rights, options,
warrants, evidences of indebtedness or assets will result in an adjustment in
the number of Common Shares or Preferred Shares to be issued to holders of
Warrants, as applicable.
11
Global Securities
We may issue Warrants in whole or in part in the form of one or
more global securities, which will be registered in the name of and be deposited
with a depositary, or its nominee, each of which will be identified in the
applicable Prospectus Supplement. The global securities may be in temporary or
permanent form. The applicable Prospectus Supplement will describe the terms of
any depositary arrangement and the rights and limitations of owners of
beneficial interests in any global security. The applicable Prospectus
Supplement will describe the exchange, registration and transfer rights relating
to any global security.
Modifications
The Warrant Indenture, if any, will provide for modifications
and alterations to the Warrants issued thereunder by way of a resolution of
holders of Warrants at a meeting of such holders or a consent in writing from
such holders. The number of holders of Warrants required to pass such a
resolution or execute such a written consent will be specified in the Warrant
Indenture, if any.
We may amend any Warrant Indenture and the Warrants, without
the consent of the holders of the Warrants, to cure any ambiguity, to cure,
correct or supplement any defective or inconsistent provision, or in any other
manner that will not materially and adversely affect the interests of holders of
outstanding Warrants.
DESCRIPTION OF RIGHTS
The following description, together with the additional
information we may include in any applicable Prospectus Supplements and free
writing prospectuses, summarizes the material terms and provisions of the Rights
that we may offer under this Prospectus. Rights may be offered independently or
together with Common Shares, Warrants, Preferred Shares or other security, or a
combination thereof, and may be attached to or separate from those Securities.
While the terms we have summarized below will apply generally to any Rights that
we may offer under this Prospectus, we will describe the particular terms of any
series of Rights in more detail in the applicable Prospectus Supplement. The
terms of any Rights offered under a Prospectus Supplement may differ from the
terms described below.
General
Rights may be issued independently or together with any other
security and may or may not be transferable. As part of any rights offering, we
may enter into a standby underwriting or other arrangement under which the
underwriters or any other person would purchase any securities that are not
purchased in such rights offering. If we issue Rights, each series of Rights
will be issued under a separate rights agreement to be entered into between us
and a bank, trust company or transfer agent, as rights agent, that will be named
in the applicable Prospectus Supplement. Further terms of the Rights will be
stated in the applicable Prospectus Supplement. The rights agent will act solely
as our agent and will not assume any obligation to any holders of Rights
certificates or beneficial owners of Rights. The rights agreements and rights
certificates will be filed with the SEC as an exhibit to the registration
statement of which this Prospectus is a part or as an exhibit to a filing
incorporated by reference in the registration statement.
The Prospectus Supplement relating to any Rights we offer will
describe the specific terms of the offering and the Rights, including the record
date for shareholders entitled to the Rights distribution, the number of Rights
issued and the number of Common Shares or other securities that may be purchased
upon exercise of the Rights, the exercise price of the Rights, the date on which
the Rights will become effective and the date on which the Rights will expire,
and any applicable U.S. and Canadian federal income tax considerations.
In general, a Right entitles the holder to purchase for cash a
specific number of Common Shares or other securities at a specified exercise
price. The Rights are normally issued to shareholders as of a specific record
date, may be exercised only for a limited period of time and become void
following the expiration of such period. If we decide to issue Rights, we will
accompany this prospectus with a Prospectus Supplement that will describe, among
other things:
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the record date for shareholders
entitled to receive the Rights;
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12
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the number of Common Shares or other securities that may
be purchased upon exercise of each Right;
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the exercise price of the Rights;
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the terms for changes to or adjustments in the exercise
price, if any;
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whether the Rights are transferable;
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the period during which the Rights may be exercised and
when they will expire;
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the steps required to exercise the Rights;
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whether the Rights include oversubscription rights so
that the holder may purchase more securities if other holders do not
purchase their full allotments;
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whether we intend to sell Common Shares or other
securities that are not purchased in the rights offering to an underwriter
or other purchaser under a contractual standby commitment or other
arrangement;
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our ability to withdraw or terminate the rights offering;
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material United States and Canadian federal income tax
consequences of acquiring, owning, exercising and disposing of Rights; and
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other material terms, including terms relating to
transferability, exchange, exercise or amendment of the Rights.
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If fewer than all of the Rights issued in any rights offering
are exercised, we may offer any unsubscribed securities directly to persons
other than shareholders, to or through agents, underwriters or dealers or
through a combination of such methods, including pursuant to standby
arrangements, as described in the applicable Prospectus Supplement. After the
close of business on the expiration date, all unexercised Rights will become
void.
Prior to the exercise of a holders Rights, the holder will not
have any of the rights of holders of the securities issuable upon the exercise
of the Rights and will not be entitled to, among other things, vote or receive
dividend payments or other distributions on the securities purchasable upon
exercise.
DESCRIPTION OF SUBSCRIPTION RECEIPTS
We may issue Subscription Receipts, which will entitle holders
to receive upon satisfaction of certain release conditions and for no additional
consideration, Common Shares, Warrants, Preferred Shares or any combination
thereof. Subscription Receipts will be issued pursuant to one or more
subscription receipt agreements (each, a
Subscription Receipt
Agreement
), each to be entered into between us and an escrow agent (the
Escrow Agent
), which will establish the terms and conditions of the
Subscription Receipts. Each Escrow Agent will be a financial institution
organized under the laws of the United States or a state thereof or Canada or a
province thereof and authorized to carry on business as a trustee. We will file
as exhibits to the registration statement of which this Prospectus is a part, or
will incorporate by reference from a Current Report on Form 8-K that we file
with the SEC, any Subscription Receipt Agreement describing the terms and
conditions of Subscription Receipts we are offering before the issuance of such
Subscription Receipts.
The following description sets forth certain general terms and
provisions of Subscription Receipts and is not intended to be complete. The
statements made in this Prospectus relating to any Subscription Receipt
Agreement and Subscription Receipts to be issued thereunder are summaries of
certain anticipated provisions thereof and are subject to, and are qualified in
their entirety by reference to, all provisions of the applicable Subscription
Receipt Agreement and the Prospectus Supplement describing such Subscription
Receipt Agreement.
The Prospectus Supplement relating to any Subscription Receipts
we offer will describe the Subscription Receipts and include specific terms
relating to their offering. All such terms will comply with the requirements of
the TSX and NYSE MKT relating to Subscription Receipts. If underwriters or
agents are used in the sale of Subscription Receipts, one or more of such underwriters or agents may also
be parties to the Subscription Receipt Agreement governing the Subscription
Receipts sold to or through such underwriters or agents.
13
General
The Prospectus Supplement and the Subscription Receipt
Agreement for any Subscription Receipts we offer will describe the specific
terms of the Subscription Receipts and may include, but are not limited to, any
of the following:
-
the designation and aggregate number of Subscription Receipts offered;
-
the price at which the Subscription Receipts will be offered;
-
the currency or currencies in which the Subscription Receipts will be
offered;
-
the designation, number and terms of the Common Shares, Warrants, Preferred
Shares or combination thereof to be received by holders of Subscription
Receipts upon satisfaction of the release conditions, and the procedures that
will result in the adjustment of those numbers;
-
the conditions (the Release Conditions) that must be met in order for
holders of Subscription Receipts to receive for no additional consideration
Common Shares, Warrants, Preferred Shares or a combination thereof;
-
the procedures for the issuance and delivery of Common Shares, Warrants,
Preferred Shares or a combination thereof to holders of Subscription Receipts
upon satisfaction of the Release Conditions;
-
whether any payments will be made to holders of Subscription Receipts upon
delivery of the Common Shares, Warrants, Preferred Shares or a combination
thereof upon satisfaction of the Release Conditions (
e.g.
, an amount
equal to dividends declared on Common Shares or Preferred Shares by us to
holders of record during the period from the date of issuance of the
Subscription Receipts to the date of issuance of any Common Shares or
Preferred Shares pursuant to the terms of the Subscription Receipt Agreement);
-
the terms and conditions under which the Escrow Agent will hold all or a
portion of the gross proceeds from the sale of Subscription Receipts, together
with interest and income earned thereon (collectively, the Escrowed Funds),
pending satisfaction of the Release Conditions;
-
the terms and conditions pursuant to which the Escrow Agent will hold
Common Shares or Warrants or Preferred Shares or a combination thereof pending
satisfaction of the Release Conditions;
-
the terms and conditions under which the Escrow Agent will release all or a
portion of the Escrowed Funds to us upon satisfaction of the Release
Conditions;
-
if the Subscription Receipts are sold to or through underwriters or agents,
the terms and conditions under which the Escrow Agent will release a portion
of the Escrowed Funds to such underwriters or agents in payment of all or a
portion of their fees or commission in connection with the sale of the
Subscription Receipts;
-
procedures for the refund by the Escrow Agent to holders of Subscription
Receipts of all or a portion of the subscription price for their Subscription
Receipts, plus any
pro rata
entitlement to interest earned or income
generated on such amount, if the Release Conditions are not satisfied;
-
any entitlement of the Company to purchase the Subscription Receipts in the
open market by private agreement or otherwise;
-
whether we will issue the Subscription Receipts as global securities and,
if so, the identity of the depositary for the global securities;
-
whether we will issue the Subscription Receipts as bearer securities,
registered securities or both;
-
provisions as to modification, amendment or variation of the Subscription
Receipt Agreement or any rights or terms attaching to the Subscription
Receipts;
-
the identity of the Escrow Agent;
-
whether the Subscription Receipts will be listed on any exchange;
14
-
material United States and Canadian federal tax consequences of acquiring,
owning, receiving securities in exchange and disposing of the Subscription
Receipts; and
-
any other terms of the Subscription Receipts.
In addition, the Prospectus Supplement and the Subscription
Receipt Agreement for any Subscription Receipts we offer will describe all
contractual rights of rescission that will be granted to initial purchasers of
Subscription Receipts in the event this Prospectus, the Prospectus Supplement
under which the Subscription Receipts are issued or any amendment hereto or
thereto contains a misrepresentation, as discussed further under the
sub-paragraph entitled Rescission below.
The holders of Subscription Receipts will not be
shareholders of the Company. Holders of Subscription Receipts are entitled only
to receive Common Shares, Warrants, Preferred Shares or a combination thereof on
exchange of their Subscription Receipts, plus any cash payments provided for
under the Subscription Receipt Agreement, if the Release Conditions are
satisfied. If the Release Conditions are not satisfied, the holders of
Subscription Receipts shall be entitled to a refund of all or a portion of the
subscription price therefor and all or a portion of the
pro
rata
share of interest earned or income generated thereon, as
provided in the Subscription Receipt Agreement.
Escrow
The Escrowed Funds will be held in escrow by the Escrow Agent,
and such Escrowed Funds will be released to us (and, if the Subscription
Receipts are sold to or through underwriters or agents, a portion of the
Escrowed Funds may be released to such underwriters or agents in payment of all
or a portion of their fees in connection with the sale of the Subscription
Receipts) at the time and under the terms specified by the Subscription Receipt
Agreement. If the Release Conditions are not satisfied, holders of Subscription
Receipts will receive a refund of all or a portion of the subscription price for
their Subscription Receipts plus their
pro rata
entitlement to interest
earned or income generated on such amount, in accordance with the terms of the
Subscription Receipt Agreement. Common Shares or Warrants or Preferred Shares
may be held in escrow by the Escrow Agent, and will be released to the holders
of Subscription Receipts following satisfaction of the Release Conditions at the
time and under the terms specified in the Subscription Receipt Agreement.
Anti-Dilution
The Subscription Receipt Agreement will specify that upon the
subdivision, consolidation, reclassification or other material change of the
Common Shares or Warrants or Preferred Shares, as applicable, or any other
reorganization, amalgamation, merger or sale of all or substantially all of our
assets, the Subscription Receipts will thereafter evidence the right of the
holder to receive the securities, property or cash deliverable in exchange for
or on the conversion of or in respect of the Common Shares or Warrants or
Preferred Shares to which the holder of a Common Share or Warrant or Preferred
Share would have been entitled immediately after such event. Similarly, any
distribution to all or substantially all of the holders of Common Shares or
Preferred Shares, as applicable, of rights, options, warrants, evidences of
indebtedness or assets will result in an adjustment in the number of Common
Shares or Preferred Shares, as applicable, to be issued to holders of
Subscription Receipts whose Subscription Receipts entitle the holders thereof to
receive Common Shares or Preferred Shares, as applicable. Alternatively, such
securities, evidences of indebtedness or assets may, at our option, be issued to
the Escrow Agent and delivered to holders of Subscription Receipts on exercise
thereof. The Subscription Receipt Agreement will also provide that if other
actions of the Company affect the Common Shares or Warrants or Preferred Shares,
as applicable, which, in the reasonable opinion of our directors, would
materially affect the rights of the holders of Subscription Receipts and/or the
rights attached to the Subscription Receipts, the number of Common Shares or
Warrants or Preferred Shares, as applicable, which are to be received pursuant
to the Subscription Receipts shall be adjusted in such manner, if any, and at
such time as our directors may in their discretion reasonably determine to be
equitable to the holders of Subscription Receipts in such circumstances.
Rescission
The Subscription Receipt Agreement will also provide that any
misrepresentation in this Prospectus, the Prospectus Supplement under which the
Subscription Receipts are offered, or any amendment thereto, will entitle each
initial purchaser of Subscription Receipts to a contractual right of rescission
following the issuance of the Common Shares or Warrants or Preferred Shares, as
applicable, to such purchaser entitling such purchaser to receive the amount
paid for the Subscription Receipts upon surrender of the Common Shares or
Warrants or Preferred Shares, as applicable, provided that such remedy for rescission is exercised in the
time stipulated in the Subscription Receipt Agreement. This right of rescission
does not extend to holders of Subscription Receipts who acquire such
Subscription Receipts from an initial purchaser, on the open market or
otherwise, or to initial purchasers who acquire Subscription Receipts in the
United States.
15
Global Securities
We may issue Subscription Receipts in whole or in part in the
form of one or more global securities, which will be registered in the name of
and be deposited with a depositary, or its nominee, each of which will be
identified in the applicable Prospectus Supplement. The global securities may be
in temporary or permanent form. The applicable Prospectus Supplement will
describe the terms of any depositary arrangement and the rights and limitations
of owners of beneficial interests in any global security. The applicable
Prospectus Supplement also will describe the exchange, registration and transfer
rights relating to any global security.
Modifications
The Subscription Receipt Agreement will provide for
modifications and alterations to the Subscription Receipts issued thereunder by
way of a resolution of holders of Subscription Receipts at a meeting of such
holders or a consent in writing from such holders. The number of holders of
Subscriptions Receipts required to pass such a resolution or execute such a
written consent will be specified in the Subscription Receipt Agreement.
DESCRIPTION OF PREFERRED SHARES
The Preferred Shares issuable in series will have the rights,
privileges, restrictions and conditions assigned to the particular series upon
the board of directors of the Company approving their issuance, subject to the
Companys articles of continuance. We currently have authorized an unlimited
number of Series A Preferred Shares which are non-redeemable, non-callable,
non-voting and do not have a right to dividends. The terms of any Preferred
Shares offered under this Prospectus and any related agreements will be
described in the Prospectus Supplement filed in respect of the issuance of such
Preferred Shares.
DESCRIPTION OF DEBT SECURITIES
From time to time, debt securities may be offered and sold
under this Prospectus. The terms of any debt securities and any related
agreements or indentures will be described in a Prospectus Supplement to be
filed in respect of such offering.
We will provide particular terms and provisions of a series of
Debt Securities, and a description of how the general terms and provisions
described below may apply to that series, in a Prospectus Supplement. The
following summary may not contain all of the information that is important to
the investor. For a more complete description, prospective investors should
refer to the applicable Prospectus Supplement and to the applicable indenture
(the
Indenture
), a copy of which will be distributed in connection with
any distribution of Debt Securities under this Prospectus and filed by us with
the securities regulatory authorities in Canada and the United States after we
have entered into it. The Indenture will be subject to and governed by the U.S.
Trust Indenture Act of 1939, as amended.
The Indenture may not limit the aggregate principal amount of
Debt Securities which may be issued under it, and we may issue Debt Securities
in one or more series. Securities may be denominated and payable in any
currency. We may offer no more than $100,000,000 (or the equivalent in other
currencies) aggregate principal amount of Debt Securities pursuant to this
Prospectus. Unless otherwise indicated in the applicable Prospectus Supplement,
the Indenture will permit us, without the consent of the holders of any Debt
Securities, to issue additional Debt Securities under the Indenture with the
same terms and with the same CUSIP numbers as the Debt Securities offered in
that series, provided that such additional Debt Securities must be part of the
same issue as the Debt Securities offered in that series for U.S. federal income
tax purposes. We may also from time to time repurchase Debt Securities in open
market purchases or negotiated transactions without prior notice to holders.
The applicable Prospectus Supplement will set forth the
following terms relating to the Debt Securities offered by such Prospectus
Supplement:
-
the title of the Debt Securities;
-
the total principal amount of the Debt Securities;
16
-
whether the Debt Securities will be issued in individual certificates to
each holder or in the form of temporary or permanent global Debt Securities
held by a depositary on behalf of holders;
-
the date or dates on which the principal of and any premium on the Debt
Securities will be payable;
-
any interest rate, the date from which interest will accrue, interest
payment dates and record dates for interest payments and whether and under
what circumstances any additional amounts with respect to the Debt Securities
will be payable;
-
the place or places where payments on the Debt Securities will be payable;
-
any provisions for optional redemption, early repayment, retraction,
purchase for cancellation or surrender;
-
any sinking fund or other provisions that would require the redemption,
purchase or repayment of Debt Securities;
-
whether payments on the Debt Securities will be payable in a foreign
currency or currency units or another form;
-
the portion of the principal amount of Debt Securities that will be
payable if the maturity is accelerated, other than the entire principal
amount;
-
events of default by the Company and covenants of the Company;
-
any restrictions or other provisions relating to the transfer or exchange
of Debt Securities;
-
any provisions permitting or restricting the issuance of additional
securities, the incurring of additional indebtedness and other material
negative covenants including restrictions against payment of dividends and
restrictions against giving security on our assets or the assets of our
subsidiaries;
-
the rank and terms of subordination of any series of subordinate debt;
-
whether or not the Debt Securities will be secured or unsecured, and the terms of any secured debt
including a general description of the collateral and of the material terms of any related security, pledge
or other agreements;
-
any terms for the conversion or exchange of the Debt Securities for other
securities of the Company or any other entity, or for the redemption on
maturity through the issuance of Common Shares or any other securities of the
Company; and
-
any other terms of the Debt Securities not prohibited by the Indenture.
Unless otherwise indicated in the applicable Prospectus
Supplement we will issue Debt Securities in registered form without coupons, and
in denominations of $1,000 and multiples of $1,000. Debt Securities may be
presented for exchange, and registered Debt Securities may be presented for
registration of transfer in the manner set forth in the Indenture and in the
applicable Prospectus Supplement, without service charges. We may, however,
require payment sufficient to cover any taxes or other governmental charges due
in connection with the exchange or transfer. We will appoint a trustee as
security registrar.
Unless otherwise indicated in the applicable Prospectus
Supplement, the holders of the Debt Securities will not be afforded protection
under the Indenture in the event of a highly leveraged transaction or a change
in control of the Company, except in certain specified circumstances.
We may issue Debt Securities under the Indenture bearing no
interest or interest at a rate below the prevailing market rate at the time of
issuance and, in such circumstances, we will offer and sell those Securities at
a discount below their stated principal amount. We will describe in the
applicable Prospectus Supplement any material Canadian and U.S. federal income
tax consequences and other special considerations.
Neither we nor any of our subsidiaries will be subject to any
financial covenants under the Indenture. In addition, neither we nor any of our
subsidiaries will be restricted under the Indenture from paying dividends,
incurring debt, or issuing or repurchasing its securities.
As further described in any Prospectus Supplement, any Debt Securities issued by us may be secured or unsecured obligations of the Company and may be senior or subordinate debt. As of the date of this Prospectus, we and our subsidiaries had no outstanding indebtedness, other than intercompany indebtedness, trade payables, debentures in the aggregate principal amount of Cdn$22,000,000, and a loan payable to Johnson County, Wyoming in the amount of $15,622,817.
We may issue Debt Securities and incur additional indebtedness
otherwise than through the offering of any Debt Securities pursuant to this
Prospectus.
17
DESCRIPTION OF UNITS
The following description, together with the additional
information we may include in any applicable Prospectus Supplements, summarizes
the material terms and provisions of the Units that we may offer under this
Prospectus. While the terms we have summarized below will apply generally to any
Units that we may offer under this Prospectus, we will describe the particular
terms of any series of Units in more detail in the applicable Prospectus
Supplement. The terms of any Units offered under a Prospectus Supplement may
differ from the terms described below.
We will file as exhibits to the registration statement of which
this Prospectus is a part, or will incorporate by reference from a current
report on Form 8-K that we file with the SEC, the form of unit agreement (which
we refer to herein as the
Unit Agreement
), if any, between us and a
unit agent (which we refer to herein as the
Unit Agent
) that describes
the terms and conditions of the series of Units we are offering, and any
supplemental agreements, before the issuance of the related series of Units. The
following summaries of material terms and provisions of the Units are subject
to, and qualified in their entirety by reference to, all the provisions of the
Unit Agreement, if any, and any supplemental agreements applicable to a
particular series of Units. We urge you to read the applicable Prospectus
Supplements related to the particular series of Units that we sell under this
Prospectus, as well as the complete Unit Agreement, if any, and any supplemental
agreements that contain the terms of the Units.
General
We may issue Units comprising one or more Common Shares,
Warrants, Rights, Preferred Shares, Subscription Receipts or Debt Securities, in
any combination. Each Unit will be issued so that the holder of the Unit is also
the holder of each security included in the Unit. Thus, the holder of a Unit
will have the rights and obligations of a holder of each included security.
Units may be issued under a Unit Agreement. Any Unit Agreement under which a
Unit may be issued may provide that the securities included in the Unit may not
be held or transferred separately, at any time or at any time before a specified
date.
We will describe in the applicable Prospectus Supplement the
terms of the series of Units, including:
|
the designation and terms of the Units and of the
securities comprising the Units, including whether and under what
circumstances those securities may be held or transferred separately;
|
|
the provisions of any governing Unit Agreement;
|
|
material United States and Canadian federal income tax
consequences of acquiring, owning, exercising, and disposing of the Units;
and
|
|
any provisions for the issuance, payment, settlement,
transfer or exchange of the Units or of the securities comprising the
Units.
|
The provisions described in this section, as well as those
described under Description of Common Shares, Description of Warrants,
Description of Rights, Description of Subscription Receipts, Description of
Preferred Shares and Description of Debt Securities, will apply to each Unit
and to any Common Share, Warrant Right, Preferred Share, Subscription Receipt or
Debt Security included in each Unit, respectively.
Issuance in Series
We may issue Units in such amounts and in numerous distinct
series as we determine.
PLAN OF DISTRIBUTION
General
We may offer and sell the Securities, separately or together:
(a) to one or more underwriters or dealers; (b) through one or more agents; or
(c) directly to one or more other purchasers. The Securities offered pursuant to
any Prospectus Supplement may be sold from time to time in one or more
transactions at: (i) a fixed price or prices, which may be changed from time to
time; (ii) market prices prevailing at the time of sale; (iii) prices related to
such prevailing market prices; or (iv) other negotiated prices, including sales
in transactions that are deemed to be at-the-market distributions, including
sales made directly on the TSX, NYSE MKT or other existing trading markets for
the securities. We may only offer and sell the Securities pursuant to a
Prospectus Supplement during the period that this Prospectus, including any
amendments hereto, remains effective. The Prospectus Supplement for any of the Securities being offered thereby will set forth the terms of
the offering of such Securities, including the type of Security(ies) being
offered, the name or names of any underwriters, dealers or agents, the purchase
price of such Securities, the proceeds or consideration to us from such sale,
any underwriting commissions or discounts and other items constituting
underwriters compensation and any discounts or concessions allowed or
re-allowed or paid to dealers. Only underwriters so named in the Prospectus
Supplement are deemed to be underwriters in connection with the Securities
offered thereby.
18
By Underwriters
If underwriters are used in the sale, the Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
Unless otherwise set forth in the Prospectus Supplement relating thereto, the
obligations of underwriters to purchase the Securities will be subject to
certain conditions, but the underwriters will be obligated to purchase all of
the Securities offered by the Prospectus Supplement if any of such Securities
are purchased. We may offer the Securities to the public through underwriting
syndicates represented by managing underwriters or by underwriters without a
syndicate. We may agree to pay the underwriters a fee or commission for various
services relating to the offering of any Securities. Any such fee or commission
will be paid out of our general corporate funds. We may use underwriters with
whom we have a material relationship. We will describe in the Prospectus
Supplement, naming the underwriter, the nature of any such relationship.
By Dealers
If dealers are used, and if so specified in the applicable
Prospectus Supplement, we will sell such Securities to the dealers as
principals. The dealers may then resell such Securities to the public at varying
prices to be determined by such dealers at the time of resale. Any public
offering price and any discounts or concessions allowed or re-allowed or paid to
dealers may be changed from time to time. We will set forth the names of the
dealers and the terms of the transaction in the applicable Prospectus
Supplement.
By Agents
The Securities may also be sold through agents designated by
us. Any agent involved will be named, and any fees or commissions payable by us
to such agent will be set forth, in the applicable Prospectus Supplement. Any
such fees or commissions will be paid out of our general corporate funds. Unless
otherwise indicated in the Prospectus Supplement, any agent will be acting on a
best efforts basis for the period of its appointment.
Direct Sales
Securities may also be sold directly by us at such prices and
upon such terms as agreed to by us and the purchaser. In this case, no
underwriters, dealers or agents may be involved in the offering.
General Information
Underwriters, dealers and agents that participate in the
distribution of the Securities offered by this Prospectus may be deemed
underwriters under the Securities Act, and any discounts or commissions they
receive from us and any profit on their resale of the securities may be treated
as underwriting discounts and commissions under the Securities Act.
Underwriters, dealers or agents who participate in the
distribution of Securities may be entitled under agreements to be entered into
with us to indemnification by us against certain liabilities, including
liabilities under Canadian provincial and territorial and United States
securities legislation, or to contribution with respect to payments which such
underwriters, dealers or agents may be required to make in respect thereof. Such
underwriters, dealers or agents may be customers of, engage in transactions
with, or perform services for, us in the ordinary course of business.
We may enter into derivative transactions with third parties,
or sell securities not covered by this Prospectus to third parties in privately
negotiated transactions. If the applicable Prospectus Supplement indicates, in
connection with those derivatives, the third parties may sell securities covered
by this Prospectus and the applicable Prospectus Supplement, including in short
sale transactions. If so, the third parties may use securities pledged by us or
borrowed from us or others to settle those sales or to close out any related
open borrowings of stock, and may use securities received from us in settlement of those derivatives to close
out any related open borrowings of stock. The third parties in such sale
transactions will be identified in the applicable Prospectus Supplement.
19
One or more firms, referred to as remarketing firms, may also
offer or sell the Securities, if the Prospectus Supplement so indicates, in
connection with a remarketing arrangement upon their purchase. Remarketing firms
will act as principals for their own accounts or as agents for us. These
remarketing firms will offer or sell the Securities in accordance with the terms
of the Securities. The Prospectus Supplement will identify any remarketing firm
and the terms of its agreement, if any, with us and will describe the
remarketing firms compensation. Remarketing firms may be deemed to be
underwriters in connection with the Securities they remarket.
In connection with any offering of Securities, underwriters may
over-allot or effect transactions which stabilize or maintain the market price
of the Securities offered at a level above that which might otherwise prevail in
the open market. Such transactions may be commenced, interrupted or discontinued
at any time.
TRANSFER AGENT AND REGISTRAR
Our registrar and transfer agent for our Common Shares is CST
Trust Company at its principal offices in Toronto, Ontario, Canada.
LEGAL MATTERS
Certain legal matters related to the Securities offered by this
Prospectus will be passed upon on our behalf by Dorsey & Whitney LLP, with
respect to matters of United States law, and Borden Ladner Gervais LLP, with
respect to matters of Canadian law.
EXPERTS
Information relating to our mineral properties in this
Prospectus and the documents incorporated by reference herein has been derived
from reports, statements or opinions prepared or certified by Roscoe Postle
Associates Inc., William E. Roscoe, Douglas T. Underhill, Thomas C. Pool, Barton
G. Stone, Robert Michaud, Stuart E. Collins, Mark B. Mathisen, Harold R.
Roberts, David A. Ross, Peters Geosciences, Douglas C. Peters, BRS Inc., Douglas
L. Beahm, W. Paul Goranson, Douglass Graves, Richard White, Don R. Woody, Woody
Enterprises, Terrence P. McNulty, T.P. McNulty & Associates Inc., Chlumsky,
Ambrust and Meyer, Geoffrey S. Carter, Broad Oak Associates, Trec, Inc., Allan
Moran, Frank A. Daviess, SRK Consulting (U.S.) Inc., Christopher Moreton,
Richard L. Nielsen, Robert L. Sandefur, Matthew P. Reilly, this information has
been included in reliance on such companies and persons expertise.
None of Roscoe Postle Associates Inc., William E. Roscoe,
Douglas T. Underhill, Thomas C. Pool, Barton G. Stone, Robert Michaud, Stuart E.
Collins, Mark B. Mathisen, Harold R. Roberts, David A. Ross, Peters Geosciences,
Douglas C. Peters, BRS Inc., Douglas L. Beahm, W. Paul Goranson, Douglass
Graves, Richard White, Don R. Woody, Woody Enterprises, Terrence P. McNulty,
T.P. McNulty & Associates Inc., Chlumsky, Ambrust and Meyer, Geoffrey S.
Carter, Broad Oak Associates, Trec, Inc., Allan Moran, Frank A. Daviess, SRK
Consulting (U.S.) Inc., Christopher Moreton, Richard L. Nielsen, Robert L.
Sandefur, Matthew P. Reilly, each being companies and persons who have prepared
or certified the preparation of reports, statements or opinions in this
Prospectus and the documents incorporated by reference herein relating to our
mineral properties, or any director, officer, employee or partner thereof, as
applicable, received or has received a direct or indirect interest in our
property or of any of our associates or affiliates. As at the date hereof, the
aforementioned persons, companies and persons at the companies specified above
who participated in the preparation of such reports, statements or opinions, as
a group, beneficially own, directly or indirectly, less than 1% of our
outstanding Common Shares.
Our consolidated financial statements as at December 31, 2015
and 2014, and for each of the years in the three- year period ended December 31,
2015, have been incorporated by reference herein in reliance upon the report of
KPMG LLP, independent registered public accounting firm, also incorporated by
reference herein, and upon the authority of that firm as experts in accounting
and auditing.
20
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. Our SEC filings are available to the public
over the Internet at the SECs web site at http://www.sec.gov.
This Prospectus is part of a registration statement and, as
permitted by SEC rules, does not contain all of the information included in the
registration statement. Whenever a reference is made in this Prospectus to any
of our contracts or other documents, the reference may not be complete and, for
a copy of the contract or document, you should refer to the exhibits that are
part of the registration statement. You may call the SEC at 1-800-SEC-0330 for
more information on the public reference rooms and their copy charges. You may
also read and copy any document we file with the SEC at the SECs public
reference rooms at:
100 F Street, N.E.
Room 1580
Washington, D.C. 20549
21
ENERGY FUELS INC.
Up to $20,000,000
Common Shares
_______________________
PROSPECTUS SUPPLEMENT
_______________________
December 23, 2016
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